R. v. S.J., 2026 ONCJ 465

ONTARIO COURT OF JUSTICE

CITATION: R. v. S.J., 2026 ONCJ 465

DATE: July 14, 2026

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.J.[1]

Before Justice B. Green

Heard on June 22^nd, 23^rd and 25^th, 2026

Reasons released electronically on July 14^th, 2026

Ms. K. Eberhard and Ms. Redmond.............................. counsel for the Crown

Mr. R. Handlarski........................................... counsel for the defendant Mr. J.

Green J.:

A. Introduction:

[1] Mr. J. and the complainant, Ms. V., are teenagers who are a couple of years apart in age. They attended a party on March 7^th, 2025. They were both drinking alcohol. Near the end of the party, Mr. J. admitted that he engaged in sexual contact with Ms. V. It is alleged that Ms. V. lacked the capacity to consent. As a result, Mr. J. is charged with sexually assaulting Ms. V. that night.

[2] Ms. V. has no recollection of her activities shortly after arriving at the party. The crown called various witnesses to assist with filling in the gaps in her memory.[2] In addition, exhibits were filed that established she suffered scratches, abrasions and bruises to various parts of her body that were recorded by a specially qualified nurse.

[3] The following day, Ms. V. had already eliminated all the alcohol in her blood by the time samples were taken so there is no toxicological evidence of her level of intoxication.

[4] Based on the available circumstantial evidence, the crown urged me to find that the only reasonable inference is that Ms. V. did not have the capacity to consent to any kind of sexual contact with Mr. J. due to her extreme intoxication.

[5] In addition, the crown submitted that Mr. J. did not take reasonable steps to ascertain Ms. V.’s subjective consent or her capacity to consent to sexual activity. Finally, the crown suggested that some of Ms. V.’s injuries, particularly those around her vagina, were caused by Mr. J. during their interactions.

[6] In contrast, counsel focussed on various other realistic explanations for Ms. V.’s injuries. He highlighted the direct evidence of two eyewitnesses who saw Ms. V. willingly and enthusiastically initiating and then engaging in a mutual sexual encounter with Mr. J.

[7] Counsel submitted that there is insufficient circumstantial evidence to find that Ms. V. lacked the capacity to consent. Rather, she communicated her subjective consent through her actions. In addition, there is plenty of evidence from which the court can infer that her injuries were attributable to other causes. Finally, he emphasised that Mr. J. honestly believed that Ms. V. unambiguously communicated her consent through her actions.

[8] Sexual assault cases are challenging decisions for trial judges. It is essential to conscientiously prevent myths and stereotypes from infecting the reasoning process. I must carefully distinguish between the distinct elements of the offence from the complainant’s perspective and that of the accused. Finally, considering that the crown is relying on mostly circumstantial evidence, I must ensure that the only reasonable inference from the evidence is consistent with guilt before arriving at a finding of guilt.

[9] To arrive at a just and informed decision, it is essential to review the whole of the evidence, not just those individual pieces favourable to either position isolated from important context. Considering the complexities and intricacies of the legal analysis, I will also review various precedents to guide my decision.

B. Facts:

[10] The H. brothers invited their friends to attend a party at their rural home. The brothers are a couple of years apart in age. Younger and older teens attended the party on March 7^th, 2025. It was a mixture of grade 10 and grade 12 students. Ms. V. was born in July of 2009. She was fifteen years old at the time. Mr. J. was born in June of 2007. He was seventeen years old.

[11] There were various pictures of the H. house, the surrounding area and a loft above a garage that were tendered as evidence. The garage is a separate building from the house. There is a loft area above the garage. The party was held in the loft. It is a relatively small space but large enough for a ping pong table, a couch, some benches, tables and a bar area.

[12] To get up to the loft, there are a steep set of stairs that are divided in two sets of steps and a landing in an L-shape ascending to a porch area. The witnesses described the stairs as difficult to navigate even when in a sober state.

[13] There is a double set of glass French doors to enter the loft. The loft has exposed beams, unfinished walls and ceiling and exposed wires. Various witnesses related that there were upwards of 25 to 30 young people at the party. It was loud and crowded.[3]

[14] There was no bathroom in the loft. The party goers had to descend the stairs, cross some rough terrain to go to the house to use the facilities or to access the pool table area in the basement of the house. A picture of the area between the base of the stairs and the house showed that the ground between the stairs and the entrance to the house is very uneven and full of gravel, rocks and other debris.

[15] The driveway leading up to the garage did not appear to be paved. There are trees and brush surrounding the property and along the driveway.

i. The party:

[16] Ms. V. and her friend, Ms. M., got ready for the party at Ms. V.’s house. The plan was that her mother would drive them to the party. Ms. M.’s father would pick them up around 11:30 p.m. Ms. V. intended to spend the night at Ms. M.’s house afterwards, so she had a backpack with some extra clothes.

[17] Ms. V.’s mother wanted her daughter to have a safe supply of alcohol. She knew it was her daughter’s first big party. She gave her two sealed cans of bud light and two small cans of twisted tea. She trusted her daughter to consume these drinks to ensure that she was responsible with her consumption of alcohol and no one could put anything in it.

[18] Ms. L. had to put her younger children to bed. She was certain that she dropped the young women off at the party at 8:00 p.m. Ms. M. related that they arrived at 8:30 or 9:00 “probably”.[4] This is one of a few examples that Ms. M. was not a reliable historian about the timing of events.

[19] Ms. V. and Ms. M. knew the younger H. brother. Even though Ms. V. was part of the younger group, she ran track for three years with one of the older boys, D.K. She was introduced to his friend Mr. J. at the party. She had never met him before that night. D.K. is one of Mr. J.’s closest friends.

[20] Ms. V. recalled mingling with people. She recalled that the grade 12 students were mostly in the back of the loft. They were sitting around a table and drinking.

[21] She told the police that she had a “couple of drinks.”[5] She drank the twisted teas and a bud light but that was all she remembered drinking that night. There is no additional evidence to explain Ms. V.’s total lack of recall from shortly after arriving at the party until the next morning.

[22] Ms. L. was comfortable with her daughter attending this party because she had a list of the party goers and she felt like they were all good kids. However, she messaged her approximately every 30 minutes. Ms. V.’s last message was around 9:00 or 9:30 p.m. She texted “mum, please leave me alone. I’m safe; I’m having fun.”[6]

[23] Ms. V. estimated that she could not remember anything after 9:30 p.m. She did not explain why that specific time stuck out in her mind. She did not provide any evidence about feeling gradual or extreme intoxication. She just cannot remember any details. Ms. V.’s last recollections were talking to four people: A.M., S.J., D.K. and P.[7] It is not clear whether this represented sporadic memories or talking to this group at the same time.

[24] Other party goers were able to fill in some of the blanks in Ms. V.’s memory. Ms. M. related that they were having fun at the party. They played beer pong, and they were taking pictures with other people. At some point, Ms. M. accompanied Ms. V. to the bathroom.[8] Ms. V. fell down the stairs. She did not fall because she was drunk. Ms. M. thought there was ice on the stairs. She also recalled accidentally dropping Ms. V. later.

[25] Later in the evening, Ms. Mullin described Ms. V. as “intoxicated”. She observed that:

She was crazy and she was just doing like abnormal stuff. Like, there was this dude there and they’re friends and he has like, a girlfriend of like a year or something. And she then she was hugging the girlfriend or the boyfriend, and it was kind of weird. Like, she was all over the boyfriend and I was like what are you doing and stuff? And then she told me to like get with that boyfriend or whatever and I was like no because it’s just not right. Like, she was just saying and doing abnormal stuff.[9]

[26] During a period that Ms. V. cannot recall, she communicated her choices to make advances on another teen. She encouraged Ms. M. to do the same thing. Ms. V. was told that what she was doing was not right.

[27] During cross-examination, Ms. M. agreed that Ms. V. was walking on her own in the loft. She was talking and engaging with other guests. Ms. M. had never seen her drunk before that night. Ms. V. was acting “different”.

[28] Shortly after this interaction, Ms. M. decided to call her dad. She told a random girl to keep an eye on Ms. V. She left Ms. V. in the loft area and went to the bathroom in the house and made the call to her dad.

[29] There were two older, female teens at the party, Ms. Mi. and Ms. Ke. They provided clear, credible, and mostly consistent evidence. Ms. Mi. did not consume any alcohol or recreational drugs. Ms. Ke. only sipped on a cooler that night. She consumed half of it. Their memories were not clouded by intoxicating substances.

[30] Ms. Mi. did not know Ms. V. Ms. Mi. was standing in the loft with a friend taking pictures when Ms. V. approached them. Ms. V. seemed fine. She was talking to them and walking without any difficulty.

[31] Ms. Mi. and Mr. J. are friends. She did not see him drinking alcohol or taking any non-medically prescribed drugs. While they were in the loft, she knew him well enough to recognize that he was intoxicated but not “extremely” drunk.

[32] Ms. Mi. described Ms. V. as friendly and flirtatious. She saw Ms. V. flirting with Mr. J. and others. Ms. Ke. was sitting at the bar in the loft with Mr. J. Ms. Ke. believed that Mr. J. was very intoxicated at this point.

[33] Ms. Ke. witnessed Ms. V. briefly interacting with Mr. J. She thought that it was between 9:45 and 10:00 p.m. but, like everyone else, she was not paying close attention to the time. Ms. V. was socializing and flirting with Mr. J.

[34] Ms. Ke. was present while they conversed. Ms. V. was getting along with Mr. J. She was laughing, happy and she was having fun. Ms. V. seemed like she had already had a “few drinks.” Nevertheless, she made sense when she was talking to Mr. J.[10]

[35] Ms. Ke. explained that Ms. V. was leaning on Mr. J. for a bit. Ms. Ke. could not tell if Ms. V. needed his help to stand up or Ms. V. was just trying to get close to Mr. J.

[36] Ms. M., Ms. Mi., and Ms. Ke. observed that Ms. V. was intoxicated when they last saw her, but she was substantially more impaired when they saw her later.

[37] Despite Ms. V.’s loss of memory for a substantial period, she was observed by independent witnesses to be socializing, playing games, in control of her faculties, movements and communicating responsively during conversations with other people.

ii. Twin myth concerns:

[38] The evidence with respect to Ms. V.’s flirtatious conduct was not introduced to support either of the twin myths or an improper reliance on outdated notions of how a complainant ought to behave or to suggest some kind of advance consent. Ms. V.’s earlier interactions with another party goer and Mr. J. do not mean that she is less worthy of belief that she cannot recall what happened when she was with him later or that she was more likely to have communicated her consent to sexual activity with him.

[39] The Supreme Court acknowledged in R. v. Kruk, 2024 SCC 7 at para 65 that “just because the evidence happens to align with a myth or stereotype does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial”. In this case, Ms. V.’s familiarity with and attitude towards Mr. J. is relevant for two specific reasons.

[40] First, during a period when Ms. V. has no memory, she was exhibiting awareness of who she was interacting with, who she expressed an interest in, she was making deliberate choices, and she expressed an interest in or attraction to Mr. J. Many precedents have considered the attitude of the complainant towards the accused when assessing the actus reus element.

[41] Secondly, this evidence informs Mr. J.’s state of mind, the mens rea, with respect to his understanding of Ms. V.’s capacity to consent to sexual activity with him when she approached him later that same night. During his earlier interaction, she was not very intoxicated. It also addresses that, while they were strangers prior to this night, they had some familiarity from the party.

iii. Changes in Ms. V.’s behaviour:

[42] According to Ms. M., Ms. V. was not “acting right” or “thinking properly” and “she couldn’t walk properly” before she left her in the loft. During cross-examination, she contradicted herself. She confirmed the observations of the other young women that while Ms. V. was in the loft area, she was communicating and walking fine.

[43] Ms. M. was frustrated with Ms. V.’s uncharacteristic behaviour. Ms. M. agreed that Ms. V. was being “overly friendly” and “flirtatious”. She wanted to take a break from the party because of the way Ms. V. was acting with a guy. It was making Ms. M. mad.[11] Mr. M. recalled his daughter was not panicked when she called him. There was “no, sort of, sense of emergency at that moment”.[12]

[44] At some point during the party, Ms. Mi. recalled seeing Mr. J. and Ms. V. walking out the door of the loft at the same time. Ms. V. was “walking like by herself, fine, and same with him.” After they left the loft, Ms. M. approached Ms. Mi. and her friend to hang out with them.

[45] Ms. Mi. did not say that Mr. J. and Ms. V. were interacting with each other as they left the loft. Rather, they walked out of the loft at the same time. She did not see Ms. V. again for approximately 25 to 45 minutes until she saw them in the driveway outside the house.

[46] The crown summarized Ms. Mi.’s evidence in a way that did not align with the evidence. She suggested that Mr. J. and Ms. V. were “together outside” during that time.[13] That was a speculative suggestion.[14] Ms. Mi. did not see where they went, who they were with or whether they were together. Other witnesses filled in some of the gaps in the timeline.

[47] Just after Ms. M. got off the phone with her dad, she encountered the two young women, Ms. Ke. and Ms. Mi. Ms. M. did not seem worried about her friend at that moment. Rather, she wanted to hang out with them to take a break from her friend. They went downstairs in the house to play pool for about ten to fifteen minutes.

[48] Eventually, Ms. M. texted her dad to come and pick her and Ms. V. up. During these text exchanges, Ms. M. told her dad that Ms. V. had fallen, or someone told her that Ms. V. had fallen.[15] Mr. M. encouraged his daughter to go and check on her friend. Ms. M. asked the young women to help her find Ms. V. They went up to the loft for a bit to look for her.

[49] During the trial, Ms. M. insisted that she spent at most 5 minutes apart from Ms. V. Based on a review of the evidence, it is evident that she is wrong. It was a substantially longer period.

iv. A timeline emerges of Ms. V.’s activities:

[50] Ms. M. was not paying attention to the timing of events. However, there is independent evidence that created a reasonably reliable timeline.

[51] Ms. M. confirmed with her call records that she phoned her father at 10:32 p.m. After speaking with the other young women, Ms. M. texted her father at 10:44 p.m. to ask him to come and pick them up. That is a minimum of 12 minutes that she was not with her friend. After she called her dad, she was hanging out for a while longer before they went to look for Ms. V.

[52] Two other witnesses, Mr. P. and Mr. O., estimated that Mr. J. was with Ms. V. in the driveway around 11:00 to 11:15 p.m. Mr. M. received a text at 10:44 p.m. He called his daughter to assist him with finding the house at 11:18 p.m. He arrived a minute or two later which would have been 11:20 p.m.

[53] Mr. O. was near the couple in the driveway. Ms. V. was wearing her clothes when Mr. O. left the driveway. Mr. J. explained that after she called him the wrong name, Ms. V. persisted with making comments and stripped off her clothes. Ms. V. was not wearing most of her clothes when the young women arrived in the driveway.

[54] Both sober, older teens estimated that they located Ms. V. and Mr. J. in the driveway about ten minutes before Ms. M.’s dad arrived on scene. Which would have been around 11:10 p.m.

[55] Considering the evidence of Mr. P. and Mr. O. that I will review, the evidence of the sober teens and the time of Mr. M.’s last call for directions, Mr. J. was most likely with Ms. V. from approximately 11:00 p.m. until the young women found them around 11:10 p.m. give or take a few minutes. It was a brief interaction.

[56] Ms. M. consumed four vodka coolers over the course of that evening. She was not paying attention to the timing of events. Contrary to her insistence that she did not play pool with the other young women for very long; it is evident that she was not with Ms. V. for approximately 30 to 40 minutes.

v. The gap in the evidence from 10:30 p.m. to 11:00 p.m.:

[57] There is a paucity of evidence about Ms. V.’s whereabouts or activities between 10:30 and approximately 11:00 p.m. after Ms. M. left her in the loft to before she approached Mr. J. on the porch. Two witnesses provided some evidence to fill in that gap.

[58] Mr. L.G. recalled seeing Ms. V. at the party around 10:30 p.m. He was another older teen who was completely sober. He thought that she was intoxicated. She was slurring her words and “hanging off” other people. Mr. J. was also in the loft area, but he did not see them together.

[59] Mr. G. suggested to people around Ms. V. that someone should give her a ride home. Mr. G. agreed that he only interacted with Ms. V. for 5 to 10 seconds. Ms. V.’s speech was slurred but she was appropriately responsive from his perspective. Despite signs of intoxication, he agreed that it was not so extreme or serious that he felt the need to intervene and assist Ms. V.

[60] During cross-examination, Mr. G. agreed that he was sensitive to the “particular issues of young women being intoxicated”. Mr. G.’s younger brother was at the party. He was aware that Ms. V. was similar in age. He would have intervened if he thought she was so drunk that she was falling down.

[61] Mr. P. was one of the younger teens at the party that night. He knew Ms. V. from school and Mr. J. from various sporting activities.

[62] During the party, Mr. P. and the younger H. brother noticed that Ms. V. was quite drunk. They helped her down the stairs by standing on each side of her. They told her to go and get a sandwich or something to eat so she would sober up. He didn’t focus on her after they brought her downstairs.

[63] Ms. V. was on her own and very drunk after Mr. P. walked her down the stairs. He estimated that this happened between 9:30 and 10:00 p.m. Like everyone else, he was not looking at his watch. It evident from a review of the whole of the evidence that Mr. P. is mistaken about the timing of this earlier interaction. The only reasonable inference was that this occurred after Ms. M. left her in the loft area.

[64] There is no evidence about what Ms. V. did or who she with after Ms. M. left her in the loft and/or after she was escorted downstairs by Mr. P. There is a void in the evidence about whether she consumed more alcohol or injured herself after Ms. M. left her at 10:30 p.m. to shortly before she encountered Mr. P. a second time.

[65] There are numerous reasonable explanations that could account for Ms. V.’s injuries considering the location, the terrain, the unfinished state of the loft and the stairs that she had already tumbled down when she was not as impaired by alcohol.

vi. The sexual contact:

[66] Around 11:00 to 11:15 p.m., Mr. P. was sitting in the porch area outside the loft hanging out with Mr. J. Ms. V. “came up to” Mr. J.[16] Notably, one of Ms. V.’s last memories was “talking to A [Ms. M.]. um, this person P., he’s my age, um, D. and S. (Mr. J.). And then after that I don’t remember anything”.[17] Clearly, she has some memories of her interactions with Mr. J.

[67] Mr. J. “hadn’t really been talking to her” before Ms. V. started making out with him in front of Mr. P. Mr. P. was certain that Ms. V. “instigated” the sexual contact on the porch immediately before they descended the stairs together.[18] She was first to head down the stairs. Mr. J. followed her. Mr. P. did not pay attention to where they went from there.

[68] Mr. P. rated Ms. V.’s level of intoxication to be around a 7 out of 10 by that point. She was “kind of wobbly”. He opined that Mr. J. was also quite drunk, maybe a 6 or 6.5 out of 10. He thought it was funny that Ms. V. made out with Mr. J.

[69] Mr. P. went back into the loft area after the couple left the porch. He didn’t see Ms. V. again but he did see Mr. J. about a half hour later in the basement which is consistent with his estimate that they were together after 11:00 p.m. Mr. J. returned to the basement shortly after the young women arrived in the driveway to assist Ms. V.

[70] Ms. V. expressed an interest in Mr. J. earlier that evening by flirting with him, when she was not as drunk, with other people were present. Similarly, she instigated sexual contact with Mr. J. when he was also drunk and sitting on a step talking with a friend.

[71] Ms. V. singled out Mr. J., not the other way around. She did not ask for his consent before initiating the sexual contact. She made out with Mr. J. in front of Mr. P. Mr. P. did not see where they went after the porch, but another witness was watching them as they walked down the stairs.

[72] Mr. O. was one of the older teens at the party. He has known Mr. J. for his entire life. He had never met Ms. V. before that night. He drove to the party with Mr. J. He witnessed most, if not all, of the sexual contact.

[73] The crown submitted that Mr. O. had a motive to lie because he is friends with Mr. J. Ms. Mi. and Ms. Ke. are also friends with Mr. J. and the crown relied on their evidence as reliable and credible. Moreover, the crown never put to Mr. O. that he was lying or that he had a reason to lie.

[74] The crown could have challenged his recollections because of his consumption of alcohol but that was not addressed with him either. Mr. O.’s evidence was internally consistent and externally consistent with other evidence. He presented as an honest, earnest and credible witness.

[75] Mr. O. did not pay particular attention to Ms. V. during the party. There was nothing that stood out to him about her conduct. She was not stumbling or falling inside. She seemed to be having fun and playing beer pong.[19] Mr. J. was also active at the party. He was drinking alcohol, and he seemed to be drunk.

[76] Mr. O. left the loft area between 11:00 and 11:15 p.m.[20] He wanted to get some fresh air, so he walked down to the end of the driveway where his truck was parked. He was standing outside by the rear of his truck. The porch outside the loft was well lit so he could see that area and the stairs. The driveway was dimmer so it was more difficult to see details, but he could still see what was going on.

[77] He was surfing on his phone when he looked up to the porch area because he heard the door shut. He could not see who exited the door from where he was standing. He wanted to know who it was, so he paid attention to who was descending the stairs. Ms. V. and Mr. J. came down the stairs from the porch. Ms. V. was in front of Mr. J.

[78] From Mr. O.’s perspective, Ms. V. seemed fine to him. The stairs are dangerous. He had fallen down those stairs a few times. Ms. V. descended the stairs without stumbling or falling. He was not sure whether she touched the railings to stabilize herself.

[79] During cross-examination, the crown suggested to Mr. O. that he “saw two people exit the loft”. While Mr. O. agreed, that was not a fair representation of his evidence. Mr. P. was sitting on the porch with Mr. J. when Ms. V. approached them. Mr. O.’s attention was drawn to the porch area when he heard the door shut. He could not tell who was on the porch from where he was standing until they began walking down the stairs. He could not see who came out of the doorway. Mr. O. saw Ms. V. heading down the stairs in front of Mr. J.

[80] The couple walked towards Mr. O.’s truck. Since his truck was parked near the end of the driveway, he watched them traverse about 25 to 35 feet. Neither one of them were stumbling or falling when they walked towards him. He did not see anything that caused him any concern.

[81] The crown challenged Mr. O.’s observations of Ms. V.’s state. Mr. O. conceded that he was not in a position to agree or disagree with suggestions about the extent of her intoxication when he saw her in the driveway. Nevertheless, he reiterated that she could not have been as drunk as the crown was suggesting because:

Every time I noticed her, she didn’t seem to be as intoxicated as you're saying. She wasn’t like falling over. I didn’t see her stumbling every time I noticed her.

[82] The couple stopped and stood on the opposite side of Mr. O.’s truck. They started making out so Mr. O. moved to the front of his truck. He looked over at them. They were both standing and “hugging” each other. They were “making out”. From his perspective, they “seemed into it equally”. He could hear loud breathing from them. They never changed position from standing up while he was present.

[83] Mr. O. estimated that they were making out between ten to fifteen minutes. He agreed that it could have been shorter, but he was certain that it was not a longer time.

[84] Mr. O. became very uncomfortable when he heard words being exchanged between them:

I heard, I heard P. [Ms. V.] call S. by the wrong name, and then – she called him D., and I heard S. say, my name is not D., and she said, I know, you're D.’s best friend and when I heard that, I decided it was time for me to leave.[21]

[85] Both young men saw Mr. J. and Ms. V. together around 11:00 to 11:15 p.m. The young women were in the driveway with Ms. V. for approximately ten minutes before Mr. M. arrived just after 11:18 p.m. Based on this evidence and Mr. O.’s estimation of the length of the interaction, Mr. J. was with Ms. V. in the driveway for a matter of approximately 10 minutes, if not less time, before she started calling him by someone else’s name. Mr. J. subsequently explained that this bizarre behavior escalated to Ms. V. taking off her own clothes while continuing to call him D.

[86] Mr. J. was not called as a witness to relate what happened when he interacted with Ms. V. Nevertheless, Mr. O. saw and overheard some of their interactions. In addition, the crown tendered the statements that Mr. J. spontaneously uttered immediately in the driveway, subsequent statements in the pool room that night and the following morning for the truth of their contents.

[87] Mr. G. was in the basement of the house when Mr. J. returned inside. He overheard Mr. J. telling people that “she said another person’s name and he walked away”.

[88] Within about ten minutes of leaving Mr. J. in the driveway, Mr. O. saw him again in the pool room in the house. They had a conversation that the crown elicited during cross-examination:[22]

Q. And S. says to you, him and P. did not have sex?

A. Yes.

Q. Yes. He says to you he fingered P.?

A. Yeah.

Q. And he says to you that they were making out?

A. Yes.

Q. And but he says to you he did not rape her?

A. Yes.

Q. Right? And because – and that makes sense to you because raping in your mind is sex, right?

A. Not necessarily sex. It’s more doing something against her will and she was up for it the entire time. I feel like you’d be saying no…

Q. Okay.

A. ...if you were getting raped.

Q. You feel like you’d be saying no if you were getting raped?

A. I would assume, yeah.

[89] Counsel clarified with Mr. O. that Mr. J.’s comments about not raping Ms. V. were made the next morning after a text from Ms. V. Before that text, Mr. J. did not seem worried about anything. He was acting like his “normal self.”

[90] After the text that morning, Mr. O. described Mr. J. as “really shocked” and “blown out of the water” by Ms. V.’s accusation. Mr. J.’s eyes were wide, his mouth was open and he didn’t say anything for the first minute. Mr. J. was in a state of shock for the rest of the day.

[91] The out of court statements made by Mr. J. are admissible for the truth of their contents when they are introduced by the crown during the trial. In R. v. Rojas, 2008 SCC 56 at para 37, the Supreme Court held that:

Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevant here -- the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused's out-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused. Fairness to the accused is the obvious rationale for the mixed statement exception. The exception is also based on the more pragmatic consideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory. [citations omitted and emphasis mine]

[92] I am not restricted to considering only the inculpatory aspects of these statements. I am cognizant, however, that I “can never infer that repetition alone makes the statement more likely to be true”: R. v. Bagherzadeh, 2023 ONCA 706 at para. 27

[93] Counsel could not introduce Mr. J.’s statements during cross-examination without undertaking to call his client as a witness. He did not make the undertaking, so the crown chose to elicit these statements. It was the only evidence about a more invasive act of digital penetration.

[94] Mr. J.’s account immediately after his encounter with Ms. V. while the events were fresh in his mind and his statements the following morning are direct evidence of what happened between them that night. Mr. J. was shocked and upset by the allegations the next morning. Mr. J.’s account aligns with and is corroborated by the evidence of independent witnesses.

vii. The events in the driveway:

[95] About ten minutes before Ms. M.’s father arrived on scene, the young women were looking for Ms. V.[23] In the loft, Ms. M. asked people where Ms. V. was and they told her that she was outside with Mr. J. The young women went downstairs to look for Ms. V. outside.

[96] Mr. O. must have just left his truck before or as the young women entered the driveway to look for Ms. V. Ms. Mi. knows Mr. O. She recalled that he was “there at some point” but she could not recall when exactly.[24] Ms. M. recalled seeing “people in the cars.”[25] Mr. J. could not have been alone with Ms. V. for very long. It could have been seconds or a couple of minutes at most.

[97] Ms. Mi. walked down the driveway with Ms. M. and Ms. Ke. Ms. Ke. heard some shuffling. Ms. Mi. heard talking near what she recognized to be Mr. O.’s truck. Even though it was dark, they could see “everything” that was going on.[26]

[98] Ms. Mi. moved ahead towards the noise. The first thing Ms. Mi. noticed was that Mr. J. was “putting an article of clothing” that she believed to be a pair of pants on Ms. V.[27] They were not hidden from sight.

[99] While Ms. M. was in the driveway with Mr. J., he spontaneously told them what happened between him and Ms. V.:

She “kept calling him this other guy’s name at the party” and “like she thought she was like hooking up with some other guy or whatever and then that’s, he was like, that’s when I stopped”.[28]

“that just kissed that’s basically all. And she just started taking her own clothes off and being like, D., take my clothes off and stuff like that. And then she kept calling him like D., that’s when he said he stopped and then he told R. that he fingered her and that’s all that they did”.[29]

[100] As soon as the other young women attended the driveway, while Ms. V. was present, Mr. J. made spontaneous, excited utterances that were not in response to any questions or accusations.

[101] Mr. J. related that they were mutually engaged in a physical encounter until she started calling him by another boy’s name. He stopped any sexual contact when she called him someone else. Ms. V. was the one who escalated a brief physical encounter by removing her own clothing while saying “D., take my clothes off”. She wanted to continue their sexual encounter.

[102] Mr. J. initially tried to help them with getting Ms. V. dressed but he eventually left them to tend to her. Ms. Ke. believes that they told him to leave because Ms. V.’s “ride will be here soon”.[30] He provided the excuse that he was going to get the keys to the vehicle so she could warm up inside of it. He didn’t return to the driveway. Instead, he went into the basement area of the house and confided in other people what happened with Ms. V.

[103] Ms. Mi. was surprised to see Ms. V. sitting on the ground. She believed that Ms. V. was wearing underwear and something on top like a brassiere. Ms. Ke. recalled seeing clothes on the ground and a backpack. She was certain that she had something on her top and her socks were still on, but her underwear were on the ground. Ms. V. did not have any pants on. Ms. M. described Ms. V. as “completely naked”.

[104] Considering the evidence of the two sober witnesses, I accept that Ms. V. had some garments on her, but she was mostly naked on her bottom. Ms. V. was still dressed when Mr. O. heard Ms. V. call Mr. J. by the wrong name and when he left them in the driveway.

[105] Shortly thereafter, Ms. Mi. saw Ms. V. sitting on the ground with her arms propping her up. Ms. V.’s legs and bottom were on the ground. Mr. J. stood upright. Ms. M. retrieved some clothes from Ms. V.’s bag. The young women pulled her pants on the rest of the way and got her dressed because it was cold outside. They raised Ms. V. to a standing position.

[106] The young women were struggling with Ms. V. to get her clothes on because some of them were wet. They “had to hold her up and she kept falling”.[31] Ms. V. may have had no underwear on, and she had no pants on when she was falling on an unpaved, icy driveway. Ms. M. noticed that her “butt was red, but I don’t know if that was because of her falling or something deeper”.[32]

[107] Ms. V. was talking to them but not a lot.[33] She was “responsive”, however, Ms. Mi. felt the alcohol “hit her” by that time. Ms. Ke. described Ms. V.’s speech as slurred, but she thanked them for helping her with her clothes. Ms. V.’s state of intoxication was very different from the last time they had seen her in the loft. Ms. V. repeatedly told them that she was tired, and she wanted to go lie down on the couch in the house.[34] They assured her that Mr. M. would be there soon.

[108] Ms. Mi. and Ms. Ke. helped Ms. V. to stay up because she was having difficulty standing. They had to support her. A couple of minutes after getting her upright, Ms. V. began vomiting.[35]

[109] Ms. Mi. saw a condom wrapper in the driveway. She related that “it wasn’t near them really, it was kind of like a ways”, “closer to the loft” and “like 15 feet maybe”. Ms. M. only remembered that someone saw a condom.

[110] There is no evidence that wrapper was in any way linked to Mr. J.’s encounter with Ms. V. It was not close to where they were standing. There were many young people of both sexes at this party.

[111] Mr. J. admitted to digital penetration. Mr. O. was a few feet away from them. He did not see Mr. J. lowering or removing his pants. Mr. J. stated that he withdrew his consent to any further sexual activity with Ms. V. as soon as she called him D.

[112] The condom wrapper is only relevant because it may explain why Ms. M. and then Ms. V. made erroneous assumptions or jumped to conclusions the next morning that Ms. V. was “raped” while she was with Mr. J.

viii. The aftermath:

[113] Ms. M. was certain Ms. V. was not vomiting until after they were with her in the driveway. From that point onwards, Ms. V. became progressively ill and incoherent. She was able to pull herself up into Mr. M.’s truck, but they assisted her inside it. Once inside the truck, Ms. V. was mumbling. By that time, Ms. V. did not seem coherent to Mr. M.

[114] Ms. V. vomited and urinated herself on the way home. She was inarticulate, covered in vomit and urine soaked by the time she arrived home. Ms. V.’s mother slept with her because she was physically ill throughout the night. While her daughter was asleep, Ms. L. called Ms. M. As a result of information she received, she decided that she had to talk to her daughter in the morning.

[115] Early the next morning, Ms. V. went to the bathroom and noticed she was bleeding from her vagina. Neither the crown nor counsel inquired whether she was menstruating which could account for the presence of blood. She also had injuries on her face and body. Ms. V. contacted Ms. M. to find out what happened the night before since she had no memory of most of the evening.

[116] Ms. M. eventually returned Ms. V.’s calls. She told her that she found her completely naked, which was not accurate, in the driveway with Mr. J. After that conversation and considering her injuries, Ms. V. believed that Mr. J. “raped” her.

[117] While Ms. V. was at the hospital, she reached out to D.K. on snapchat to get further information about Mr. J. She told Mr. K. that she was at the hospital. He asked her why she wanted Mr. J.’s information and why she was there. Ms. V. told him that it was because Mr. J. “raped” her.

[118] In the text exchanges that were read during Ms. V.’s video recorded statement, Mr. K. urged her to talk to them before “this escalates”. Ms. V. told him that she could not talk at that time. Mr. K. asked her whether her mother could call him so they could speak with her instead.

[119] Within a very short time, Mr. J. called Ms. V. using Mr. K.’s phone. She related that:

He told her, “We never had sex. I fingered you and we were making out, but you didn’t know my name, so I left”.[36]

Later, she provided more details about this conversation with Mr. J. He said, “we never had sex”. “I didn’t rape you”. “I fingered you and we were making out”. “You started taking all your clothes off”. “You called me D. So, I asked you what my name was. And then you said, oh, you’re D.’s friend. So, then I just, I said we’re not doing this, but we were making out”.[37]

[120] As soon as Ms. V. made these accusations, Mr. J. seemed “stressed out”[i][38] and he offered to provide more information. He immediately denied that he “raped” Ms. V. In the snapchat exchanges, he offered to speak to her mother about what happened the night before. He insisted that, after she called him the wrong name, he backed off and he told her that he was not engaging with her further.

[121] Mr. O. described that dramatic change in Mr. J.’s emotional state that morning. He was his normal self before the accusation that he raped her. Afterwards, he was in a state of shock or dismay.

[122] I appreciate that there must be some caution when accepting the exculpatory aspects of Mr. J.’s statement that have not been challenged through cross-examination.

[123] I have considered the whole of the evidence including where the couple was standing, with witnesses nearby, close to a crowded party, in a visible area, it was the wintertime, Mr. O. overheard Mr. J. questioning Ms. V., Mr. J. was alone with her for a short time, he was trying to put her clothes back on as opposed to taking them off and the progression of Ms. V.’s impairment. I accept Mr. J.’s statement that Ms. V. took off her own clothes while persisting with calling him Mr. K. as true.

ix. Physical evidence:

[124] The crown called a nurse to detail several injuries that were observed on Ms. V.’s body the following day. She had abrasions to her hands, forearms, knees and back. She had a goose egg on her face and an area of bruising around her eye. There was blood in her vaginal opening, a small pea sized bruise and a 0.5 cm long laceration with ragged edges in the vaginal area.

[125] Ms. M. saw Ms. V. fall down the stairs earlier that night. Ms. V. was drunk and separated from her friend at a rural property. There is a gap in the evidence about what she was doing that night.

[126] Mr. P. did not see any force applied to Ms. V. by Mr. J. Quite the contrary, she approached Mr. J. Mr. O. initially saw and overheard a consensual encounter until she called him the wrong name. Mr. J. asserted that the sexual contact stopped after she called him the wrong name. Ms. V. started removing her own clothing and falling on the ground.

[127] Based on a reasonably reliable timeline of witness accounts, Mr. J. was alone with Ms. V. for a matter of minutes after Mr. O. left and before the young women arrived in the driveway. The young women saw Mr. J. trying to put her clothes back on her, not remove them or harm her.

[128] When the young women located Ms. V. in the driveway, she was seated on a gravel driveway, in the winter, without any pants or underpants. The young women had difficulty getting Ms. V. dressed and standing her up. She fell on the ground a few times while they were trying to help her. Ms. M. explained that it was like an “ice sheet” on the driveway so they all kept slipping.[39]

[129] Ms. M. noted that Ms. V.’s buttocks were red when they picked her up from the ground. Ms. V. reported that she had small scratches in her “bum area”.[40]

[130] There is no evidence, whatsoever, from which I can infer that Mr. J. was violent with Ms. V. during their sexual encounter. Furthermore, while Mr. J. admitted that he digitally penetrated Ms. V.’s vagina, there is no evidence that he used any force. Rather, Mr. O. saw a couple mutually engaged in an embrace.

[131] There is no medical evidence or opinion that would preclude the inference that Ms. V. injured her vagina while sitting and/or falling from a standing position on gravel when she was naked or partially naked in that area as opposed to when she was touched by Mr. J. The evidence does not permit me to conclude beyond a reasonable doubt that the vaginal injuries were caused by Mr. J. rather than any one of several other realistic possibilities.

[132] The crown introduced DNA evidence from an unknown bodily substance establishing that Mr. J.’s DNA was found on Ms. V.’s left and right breast and the front panel of her underwear that was “suggestive of the presence of saliva”.[41] I take judicial notice of the fact that other bodily fluids, including sweat, can yield DNA results. There were no injuries to either of Ms. V.’s breasts.

[133] The DNA evidence was not helpful. All that it established was either Mr. J. touched some part of Ms. V.’s left and right breast and her underwear with some part of him, and/or she touched some part of him and transferred his DNA onto herself and/or his DNA transferred onto her when he was struggling to get her clothes back on her. Any one of these scenarios are plausible.

[134] Since Mr. J. admitted to making out with Ms. V. and some digital penetration, the presence of his DNA in her underpants does not definitively prove any additional fact.

[135] The staff at the hospital took samples of Ms. V.’s blood at 11:25 a.m. and samples of her urine. Ms. V.’s urine tested positive for the presence of alcohol but there is no reliable method to use urine screening to determine blood alcohol content at a specific time. Ms. V.’s blood alcohol content was zero.

[136] Based on the maximum amount of elimination of alcohol from her blood, the expert opined that 11 to 12 hours before the sample was taken, the maximum amount of alcohol that could have eliminated from her blood would have been between 110 to 240 mg/ml of alcohol. The expert’s opinion was based on a time range of 10:30 to 11:00 p.m. with the time of the sample being taken at 10:12 a.m. which is not accurate. One way or the other, the expert could not provide an “estimation of the BAC at the time of the incident”.[42]

[137] There was no evidence of any illicit drugs or marijuana in either of the samples taken from Ms. V. There is no medical or toxicological evidence to explain why Ms. V. blacked out details before she got very drunk or why she continued to vomit, urinate herself and presented as incoherent for several hours after she stopped consuming alcohol.

C. Legal Analysis and Findings of Fact:

i. General principles:

[138] The crown bears the burden to prove Mr. J.’s guilt beyond a reasonable doubt. In a case that involves a factual determination of the credibility and reliability of the crown’s witness and the evidence called by the defence, I am guided by the analysis set out by the Supreme Court of Canada in the seminal decision of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at para. 28:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[139] More recently, in R. v. A.J.K., 2022 ONCA 487 at para. 22 and 28 to 29 (Ont.C.A.), the Ontario Court of Appeal observed that:

Much ink has been spilled over W.(D.). This case involves a straightforward application of these principles. It is simply a methodology that triers use to determine whether the prosecution has met its burden of proving each element of the offence beyond a reasonable doubt. In cases like this one, involving "conflicting testimonial accounts", the methodology can be helpful in ensuring that triers keep the burden squarely on the Crown.

[140] A reasonable doubt can arise from the defence evidence or from evidence favourable to the accused in the crown’s case. More than a decade ago, in R. v. B.D., 2011 ONCA 51 at para. 114, the Ontario Court of Appeal summarized the law on this issue and provided very clear directions on how to proceed with the analysis:

…Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

[141] When assessing the strengths and weaknesses of each of the witnesses’ evidence, it is important to distinguish between the concepts of credibility and reliability. In R. v. H.C., 2009 ONCA 56 at para. 41, the Court of Appeal explained that:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:

i. Observe;

ii. Recall; and

iii. Recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

[142] There are some inconsistencies in a witness’s account that may impact the assessment of either the credibility and/or the reliability of their evidence. However, an honest witness can be mistaken about some details for a myriad of reasons. In the oft-cited decision, R. v. A.M., [2014] ONCA 769 at paras 13 to 14, the Court of Appeal stressed that:

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [citations omitted]

[143] While a witness may not be credible or reliable with respect to certain aspects of their account, that does not mean, inexorably, that I cannot accept other parts of that witness’ evidence. I am entitled to believe all, some or none of a witness’ evidence.

[144] I found all the witnesses to be credible, but there were issues with the reliability of some of their accounts.

[145] For example, Ms. M. was not a reliable historian with respect to how long she left Ms. V. alone at the party or the timing of events. A few of the witnesses had the same challenges with determining what time certain events happened that evening. They were enjoying a party and not paying attention to the exact timing of events that they had no idea would be important.

[146] Despite some weaknesses in the witnesses’ accounts, the litigants did not substantially dispute the facts. Rather, the issues to decide are the inferences from the evidence and how to apply the law to these unique facts.

ii. Unique considerations in sexual assault cases:

[147] There are various facts that have not influenced my decision in this case. For example, the fact that Ms. V. did not attend the hospital until the following morning has not impacted my assessment.[43]

[148] My decision is not based on any prejudicial notions of how Ms. V. ought to have behaved that night. As the Ontario Court of Appeal observed in R. v. Kiss, 2018 ONCA 184 at para. 101:

The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[149] More recently, the Supreme Court in R. v. Kruk, 2024 SCC 7 at para. 41 emphasized that:

It is prohibited for a trial judge to rely on notions such as: delay in a complainant's disclosure of a sexual assault, alone, undermines the credibility of the disclosure; a complainant's "failure" to dress modestly indicates that she is more likely to have consented; a complainant's "failure" to resist or cry out is suggestive of consent; the mere fact of a complainant having psychiatric or therapeutic consultations is relevant to their credibility or reliability; or a complainant associating with or not avoiding the accused after the alleged sexual assault suggests that there was consent and that no assault occurred

[150] Ms. V. did not have all the information that was uncovered during the investigation and introduced during the trial. Counsel did not suggest that she lied to the police. Rather, she made erroneous assumptions that she was raped based on incomplete and/or misleading information. Even after further investigation, speculation untethered to the established evidence persisted during the trial.

[151] I am cognizant that adverse findings about the credibility of a complaint can have lasting repercussions especially in this era with social media. The Supreme Court recently reiterated that:[44]

Today, sexual offences remain underreported and continue to occur mostly against women and children. There remains a "need to affirm the principles of equality and human dignity in .. criminal law by addressing the problem of myths and stereotypes about complainants in sexual assault cases.”

Myths and stereotypes in fact undermine a fair trial -- meaning a trial that is fair not only to the accused, but to the complainant and the public.

[152] It is a pernicious stereotype that women routinely falsely accuse men of sexual offences for ulterior motives or that a complainant invited whatever happened to her because she does meet some idealized vision of a victim.

[153] I have cautioned myself about the stereotypical notions that can arise in cases involving a complainant who drank excessive amounts of alcohol. In R. v. Al-Akhali, 2025 ONCA 229 at para 55, the Court of Appeal directed that:

But courts must also guard against "dangerous speculation, based on stereotypical notions of how drunken, forgetful women are likely to behave." Courts neither presume that intoxicated people consented nor assume that they are promiscuous, willing to have sex anywhere with anyone, to blame for harm they suffer, or more likely to lie about being sexually assaulted. [citations omitted]

[154] A trial must be fair to Ms. V. and to Mr. J. I have not made any assumptions about what she was apt to do because she was drunk and forgetful.

[155] Ms. V. did not intentionally exaggerate when she gave her statement to police. She did not knowingly make a false accusation. She was crying, very upset and in physical pain at the hospital.[45] I accept that she was traumatized by her absence of memory, her various unexplained injuries, what she was told the next morning and the ensuing events.

[156] Ms. V.’s limited perspective of the facts is not the whole of the evidence. I must consider the evidence from each individual witness and Mr. J.’s statement when assessing whether the crown has proven the elements of the offence beyond a reasonable doubt.

iii. The elements of the offence:

[157] It is imperative not to gloss over the distinct elements of the offence that the crown must prove beyond a reasonable doubt. If the crown does not prove either or both elements to the required standard, Mr. J. must be acquitted.

[158] In R. v. G.F., 2021 SCC 20 at para 25, the Supreme Court defined the elements of the offence of sexual assault as follows:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or willfully blind as to the absence of consent. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent. [citations omitted and emphasis mine]

[159] The first two aspects of the actus reus are not in issue. Mr. J. admitted that he intentionally touched Ms. V. in a manner that was sexual in nature. It is the third element that I must determine whether the crown has proven beyond a reasonable doubt.

iv. The actus reus of sexual assault:

[160] As the first step in the analysis, I must decide whether the crown has proven beyond a reasonable doubt that the complainant did not subjectively consent and/or whether she lacked the capacity to consent to sexual activity due to her state of intoxication. After that determination, the next step in the analysis is the accused’s state of mind.

[161] In R. v. G.F., supra at para 1, Justice Karakatsanis, writing on behalf of the majority, powerfully declared that:

Consent is the foundational principle upon which Canada's sexual assault laws are based. For decades, this Court has recognized that "control over who touches one's body, and how, lies at the core of human dignity and autonomy": R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 28. As such, the contours of consent are carefully delineated and jealously guarded. It is now indisputable that consent is a subjective state of mind, entirely personal to the complainant. There is no room for implied consent in Canada, and the range of mistaken beliefs an accused may lawfully hold about the complainant's consent are tightly restricted by the Criminal Code, R.S.C. 1985, c. C-46.

[162] The crown urged me to find that Ms. V. did not have the capacity to consent or make informed choices because of her state of intoxication. She did not address, however, how that finding would be inconsistent with Ms. V.’s actions immediately before the sexual contact.

[163] Following recent amendments to the Criminal Code that define the meaning of consent, the Supreme Court explained R. v. Rioux, 2025 SCC 34 at para 64 that:

Section 273.1(2) was amended in 2018 to stipulate that an unconscious person is incapable of consenting. In s. 273.1(2)(a.1) and (b), the Code thus now provides two distinct ways in which no consent would be obtained where a complainant does not have a memory or cannot provide direct evidence relevant to consent: unconsciousness and incapacity for any reason other than unconsciousness. Reading the text of these provisions together in context, and in light of their purpose, it is clear that incapacity under s. 273.1(2)(b) is the broader residual category; that is, a complainant may be incapable of consenting in circumstances other than unconsciousness. Section 273.1(2)(b) thus expressly contemplates a category of persons who are conscious, or may not technically be "unconscious", but are incapable of providing voluntary agreement to the sexual activity in question.

[164] The Supreme Court specified at paras. 68 and 69 that:

…the complainant must be capable of understanding: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant's partner or partners; and (4) that the complainant has the choice to refuse to participate in the sexual activity. All four factors must be satisfied for a complainant to have capacity to consent (G.F. SCC, at paras. 57-58). If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of consent and the absence of subjective consent is established at the actus reus stage (para. 58).

In G.F. SCC, the definition of what consent is and when it is not obtained are mutually reinforcing, and both are highlighted as essential components of the law's insistence on the complainant's subjective consent. Thus, subjective consent has two components: consent in fact and the capacity to consent. If the Crown establishes, beyond a reasonable doubt, either no consent in fact or an incapacity to consent, the non-consent element of the actus reus of sexual assault will be established (para. 31; see also paras. 32-33).

[165] When making this determination, it is important to reiterate the Supreme Court’s admonition in R. v. G.F. supra at para. 46 that:

Conversely, incapacity as a vitiating factor would bring with it a host of uncertainties. Untethered from the conditions for consent, an incapacity assessment would need to say that even though the complainant voluntarily agreed to the sexual activity in question, at some undefined point their decision-making process was so impaired that subjective consent was no longer effective. This would inject significant uncertainty into the task of establishing the actus reus of sexual assault; the blunt tool of the criminal law is poorly suited to such a delicate task as determining at what point a complainant has made an impaired but free and voluntary choice. Further difficulties and uncertainty would arise at the mens rea stage where the accused's awareness of the complainant's impaired decision-making process would need to be assessed. [emphasis mine]

[166] I accept that Ms. V. has no memory of most of that evening or the details of her interactions with Mr. J. and that she was impaired by her voluntary consumption of alcohol. That does not mean that she was incapable of consenting to sexual activity.

[167] In R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 at paras 18 and 19, aff'd 2008 ONCA 200 and leave to appeal refused, [2008] S.C.C.A. No. 189, the prosecution relied on the complainant’s memory loss as direct evidence of the complainant’s incapacity to consent. After reviewing extensive jurisprudence, Justice Ducharme held that:

Absent expert evidence, a loss of memory or a "blackout" is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, "a complete loss of memory for a portion of time during a drinking episode."³ In a sexual assault case, this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), "[t]he parties' testimony is usually the most important evidence in sexual assault cases." Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant's memory loss, "[a]ny number of things may have happened during the period in which she had no memory." Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.

I also cannot find any support for the Crown's proposition in the jurisprudence. Indeed, the law is precisely to the contrary. If the Crown's submission was correct this would mean that, in any case where the trier of fact accepted that the complainant had been touched sexually, although she had no memory of this, the actus reus would be proven and the only remaining issue would be whether or not there was any basis for the defence of honest but mistaken belief in consent. The cases discussed below in footnotes 13 to 15, infra, demonstrate clearly that this is not the case. In none of these cases is a blackout or memory loss, without more, taken as proof of lack of consent or lack of capacity.

[168] The Supreme Court provided additional guidance in this type of case in R. v. Rioux, 2025 SCC 34 that the analysis must be:

…based on the totality of the relevant, admissible, credible and reliable evidence over the full time, including the complainant's evidence about her state of mind and physical state before, during and after any sexual activity that took place, as well as any other relevant temporally connected circumstantial evidence.

[169] Since Ms. V. does not recall what she was thinking, I must rely on circumstantial evidence to determine her state of mind “at the time the sexual activity in question” took place.[46] As a result, the Supreme Court reiterated that:

Para 60: That said, in R. v. Villaroman, 2016 SCC 33, this Court set out the principles to follow where the Crown's case or an element of a criminal offence turns on circumstantial evidence. The inferences to be drawn from the circumstantial evidence depend on the nature of the evidence, the live issues, and the theories of the parties. If after considering that evidence, satisfaction as to the existence of the elements of the offence is the only reasonable or rational inference, the trier of fact should draw the inference that the elements of the offence, and hence guilt, have been established beyond a reasonable doubt [emphasis mine].

[170] I find the following circumstantial evidence to be dispositive of the issue of Ms. V.’s state of mind before and during the sexual contact. During the period that Ms. V. has no memory:

• She mingled with people, played games, spent time taking pictures and engaged with people in a responsive manner. She communicated what she wanted to do, who she wanted to do it with, and she encouraged her friend to do the same thing.

• While Ms. V. was seemingly not very impaired and she appeared to be happy and in control of her faculties, she expressed an interest in Mr. J. She was aware of his identity and demonstrated the capacity to make informed choices about engaging with him.

• Mr. J. did not make any unwanted advances on Ms. V. during the party. He was not rejected by Ms. V. He did not instigate contact or coerce her into an encounter. He did not supply her with intoxicating substances. They are relatively close in age. They were both drunk. There was no power imbalance.

• Other party goers were concerned about Ms. V.’s sobriety, so they escorted her downstairs to get some food. Thereafter, she chose to continue with interacting with people.

• Ms. V. was impaired by her consumption of alcohol, but she was appropriately responsive shortly before her encounter with Mr. J.

• There were two young men sitting on the porch. Ms. V. selected Mr. J. He was the same person who she expressed an interest in earlier. She initiated an unambiguous sexual advance on him. She stopped that interaction to direct their movements down the stairs. She chose to continue their contact in a more private place in the driveway.

• Immediately prior to the sexual activity in the driveway, two witnesses observed Ms. V.’s conduct and gait. She was not stumbling, falling or incoherent. Ms. V. led the way down a steep set of stairs. She had no difficulty descending the stairs.

• Ms. V. initiated, directed and participated in the sexual contact to the driveway. She apparently made subjective choices, on her own, each step of the way, without any pressure from the accused or anyone else.

• Ms. V. continued the sexual contact with Mr. J. in the driveway. They were observed to be mutually participating, while standing up and hugging Mr. J. During that time, she was awake, mobile and affirmatively communicating her intentions through her actions.

• Ms. V.’s demeanour changed during the physical encounter after she called Mr. J. the wrong name. Mr. J. told her that “this was not happening” after her expressed confusion. He chose to stop the sexual contact with her. He withdrew his consent, but she continued.

• Ms. V. initially clarified that she knew that Mr. J. was D.’s best friend. This evidence confirms Ms. V.’s awareness, at the material time, of the person who she was with while they were “making out”.

• Ms. V.’s actions demonstrated that she wanted to continue sexual contact after the digital penetration. However, she started calling him D. again.

• As Mr. V.’s impairment progressed, her symptoms became more apparent. She escalated a brief physical encounter to taking off her own clothes while calling Mr. J. someone else’s name.

• Ms. V.’s physical and mental state deteriorated further after she was rejected by Mr. J. Her presentation by the time the young women arrived was in stark contrast to the conduct that was observed by Mr. P. and Mr. O., at the critical time some minutes earlier, when she first interacted with Mr. J. Nevertheless, even when the young women arrived, Ms. V. was still responsive by thanking them, she communicated that she was feeling tired and she asked to lie down.

• There is no expert evidence about her state of intoxication at the time of these events because all the alcohol had eliminated from her blood by the next morning.

• There is no evidence that Ms. V. was drugged by anyone at the party. She had a safe supply of alcohol that was provided by her mother. She must have consumed more alcohol, but she has no memory of what else she drank.

• The rate of absorption and elimination of alcohol can be determined with mathematical precision. Recently consumed alcohol takes time to be absorbed into the blood. A person’s blood alcohol content rises as it is absorbed, it reaches a maximum and then it decreases over time: Exhibit 1(b).

• Considering the progressive decline in Ms. V.’s presentation and the onset of physical illness after she encountered Mr. J., it is likely the alcohol she consumed before she engaged with Mr. J. had not been fully absorbed into her system. As a result, the full impact of her alcohol consumption was not apparent.

[171] Undoubtedly, Ms. V. was very drunk and engaged in uncharacteristic behaviour. Nevertheless, Ms. V.’s absence of memory and her state of intoxication is not synonymous with the inability to subjectively consent or the incapacity to consent. There is a legal distinction between making poor or regrettable decisions while a person’s judgement is impaired and the incapacity to provide consent.

[172] The whole of the evidence must be considered as opposed to solely focussing on Ms. V.’s conduct and appearance after the sexual contact ended and after Mr. M. arrived on scene.

[173] Before Ms. V. began interacting with Mr. J., she consistently demonstrated to the witnesses that she was able to make choices, articulate herself and she was appropriately responsive to the people around her. She communicated her interest in Mr. J. and then she unequivocally expressed her intention to initiate and continue “making out” with Mr. J.

[174] Based on the constellation of facts, there is more than one reasonable inference about Ms. V.’s state of mind at the time the sexual activity took place that is inconsistent with guilt. There are other plausible alternatives, that are not mere conjecture, that Ms. V. understood the physical act and it’s sexual in nature. She knew the specific identity of her partner, and that she had the choice to refuse to participate in the sexual activity. This evidence permits a reasonable inference that she was subjectively consenting, and she had the capacity to consent.

[175] As additional alcohol was absorbed in her system, Ms. V.’s symptoms of impairment became more pronounced. By that time, Mr. J. had already chosen to back off. Ms. V. persisted with removing her own clothes when she was unable to distinguish between Mr. J. and Mr. K.

[176] These facts are obviously distinguishable from any of the cases relied on by the crown: R. v. Byun, 2020 ONCA 600; R. v. P., 2021 SCC 19, [2021] S.C.J. No. 19 and R. v. Rioux, 2025 SCC 34.

[177] I am not satisfied that the Crown has proven beyond a reasonable doubt that Ms. V. “did not have an operating mind capable of consenting or did not agree to the sexual activity in question” when she began interacting with Mr. J.: R. v. G.F. supra. Accordingly, the Crown has not proven an essential element of the offence.

[178] Mr. J. must be acquitted based on this finding. Nevertheless, as noted at the outset of these reasons, the law with respect to sexual assaults is challenging and evolving over time. As a result, I will go on to consider the mens rea out of an abundance of caution in case I have made an error in my analysis with respect to finding that the crown has not proven the actus reus beyond a reasonable doubt.

v. The mens rea:

[179] In R. v. Al-Akhali, 2025 ONCA 229, the Court of Appeal summarized years of caselaw about the mens rea of sexual assault:

At para 20: The defence of honest but mistaken belief in communicated consent has two requirements. The accused must (1) honestly believe that the complainant communicated consent and (2) take reasonable steps in the circumstances known to the accused at the time to ascertain consent. If the accused shows an air of reality to both requirements, then the defence is in play, and the Crown must negate it by proving beyond a reasonable doubt that either requirement is lacking. If the Crown negates the defence, then the accused can no longer claim that he believed that the complainant communicated consent. The Crown will then usually have "little difficulty" proving that the accused knew that the complainant did not consent or was wilfully blind or reckless to this risk. [citations omitted]

At para 23: Under the two-part reasonable steps test, judges and juries first determine the circumstances that the accused subjectively knew. Next, they decide if a reasonable person knowing those circumstances would have taken more steps than the accused took to ascertain communicated consent to the sexual activity. The defence fails if the answer to this second question is yes and succeeds if the answer is no or there is reasonable doubt.

[180] The crown emphasized certain factors that the Court of Appeal listed at para 28 that may require additional reasonable steps to ascertain consent:

Third, the reasonable person would take greater care if the accused knows circumstances that call out for caution. See Cornejo, at paras. 23-30. For instance, greater care is needed if:

The accused intends to engage in an invasive and/or risky sexual activity, like unprotected sexual intercourse;

The accused does not know, is unfamiliar with, and/or has no sexual experience with the complainant;

The accused knows that the complainant rejected the accused's advances before and/or during the encounter;

The accused knows that the complainant is or appears to be intoxicated and/or vulnerable - greater care is needed the more intoxicated and/or vulnerable the complainant appears; and,

The accused knows that the complainant is or appears to be unconscious, asleep, or passed out - an unconscious person cannot provide consent.

[181] The crown highlighted facts that Mr. J. ought to have known based on all the evidence in this case as opposed to what he subjectively knew at the relevant time. I cannot consider evidence of what each individual witness knew or saw when deciding Mr. J.’s state of mind. Rather, I must determine what he saw and what he knew when he engaged in sexual contact with Ms. V.

[182] This was a very crowded party in a small space with two distinct age groups. People were playing beer pong, listening to music, mingling and moving between the loft and a basement area to play pool.

[183] Mr. J. was one of the older teens. He was not friends with Ms. M. or Ms. V. When she approached him in the loft and flirted with him, she was happy and coherent. Ms. M. was with Ms. V. for most of the evening until 10:30 p.m. She did not relate any observations of her friend interacting with Mr. J. other than later in the driveway.

[184] Mr. P. was friends with Ms. V. He paid attention to Ms. V.’s state at one point with the younger teen host. He did not witness any interactions between Mr. J. and Ms. V. prior to the sexual encounter that she initiated on the porch. There is no evidence that Mr. P. shared his concerns about Ms. V.’s state of intoxication with Mr. J. while they were sitting together.

[185] Mr. O. was one of Mr. J.’s best friends and one of the older teens. He did not recall any unusual observations of Ms. V. at the party. He did not relate any interactions between his best friend and Ms. V. until they descended the stairs together.

[186] The only evidence of Mr. J. interacting with or paying any attention to Ms. V. was when she was happy and flirting with him at the bar earlier in the evening. They walked out of the loft together at one point when she was not having difficulty with her balance or gait. Some time later, Mr. J. was sitting on a porch when Ms. V. approached him and she communicated her choice to engage in sexual contact with him.

[187] There is insufficient evidence or an absence of evidence from which I can conclude or infer that Mr. J. saw how much Ms. V. was drinking that night or he heard her slurring her words or that he knew that she needed assistance descending the stairs at some point.

[188] Ms. V. was not in a vulnerable position in relation to Mr. J. They were both teenagers. They were both impaired by their consumption of alcohol. Ms. V. was not pressured into unwanted contact; she made an apparently independent choice. Many young people, in their respective age groups, were at the party nearby. A person of Ms. V.’s age was present during the initial parts of their encounter. Ms. V. was not secreted away by the accused; she led the way.

[189] When they continued to make out, they were not in an isolated area. They were in a driveway, with someone standing nearby, other people in cars, and a multitude of teenagers inside and/or moving between the loft and the house at the top of the driveway that was 15 to 35 feet away from them.

[190] From the information available to Mr. J., Ms. V. definitively chose to engage in sexual contact with him, and she chose to continue that contact in the driveway. There is a dearth of evidence that he had any reason to doubt or question Ms. V.’s willingness or capacity to physically express consent to have contact with him. He followed her lead.

[191] This interaction was continuous, mutual, apparently reciprocal and brief. Although there was some digital penetration while mutually “making out”, the contact did not escalate to high-risk activity like unprotected intercourse.

[192] Ms. V. was initially capable of clarifying the identity of Mr. J. as “D.’s best friend” while Mr. O. was still in the driveway. Mr. O. witnessed Mr. J. questioning Ms. V. when she called him the wrong name. Mr. J. chose to cease any further sexual contact after Ms. V. called him the wrong name. He told her that “we’re not doing this”.

[193] Ms. V. did not start acting unusually in Mr. J.’s presence until she repeated the wrong name while she was taking off her own clothes and after the young women arrived in the driveway. She did not have difficulty standing until after the sexual contact with Mr. J. stopped. She was initially responsive to the young women, but she continued to deteriorate after they arrived in the driveway. Ms. V. did not start vomiting until after the young women got her dressed and standing upright.

[194] While there is an objective aspect of determining Mr. J.’s state of mind, it must be based on factors that he was subjectively aware of when he was interacting with Ms. V. In R. v. Darrach, 1998 CanLII 1648 (ON CA), [1998] O.J. No. 397 at para 88 and 89[47], the Ontario Court of Appeal clarified that:

No doubt, the provision can be regarded as introducing an objective component into the mental element of the offence, but it is one which, in itself, is a modified one. It is personalized according to the subjective awareness of the accused at the time. The accused is to "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". In other words, the accused is not under an obligation to determine all the relevant circumstances - the issue is what he actually knew, not what he ought to have known.

In addition, while the provision requires reasonable steps, it does not require that all reasonable steps be taken, as it did in the first version of the bill (Bill C-49, s. 1). [emphasis mine]

[195] A reasonably available inference from the facts known to Mr. J. is that Ms. V. was confident, assertive and very direct about her intentions when she approached him. She expressed an interest in him earlier and then she explicitly communicated her consent to engage in sexual contact with him from the porch to the driveway through her actions.

[196] In terms of the digital penetration, I appreciate the Court of Appeal’s caution in Al-Akhali supra at para 30 that:

The reasonable person would take steps to ascertain consent to each sexual act, a requirement which may, depending on the circumstances, require taking additional steps where there are multiple acts. See Sanclemente, at paras. 97 and 99. This precludes a blanket approach that equates consent to one sexual act with consent to any and all. See G.F., at para. 63. Accordingly, confirming that another person has communicated consent to kissing and undressing is not, without more, reasonable steps to ascertain consent to sexual intercourse.

[197] Up until the wrong name was spoken, this was a seemingly mutually enjoyable sexual encounter initiated by the complainant.

[198] As soon as Ms. V. exhibited some confusion, Mr. J. began to question her to ascertain whether she knew his identity. Based on his statements, Ms. V. persisted with sexualized behaviour without Mr. J.’s continued involvement. A reasonably available inference is that the momentary progression to digital penetration during a brief sexual encounter was either directed by or positively received by Ms. V. which communicated her continued consent.

[199] I must decide what Mr. J. “actually knew” in the minutes that he was interacting with Ms. V. in the driveway not what he ought to have known about her circumstances beforehand. In addition, the assessment of what he knew is not informed by what happened afterwards as her condition worsened. When Ms. V. showed signs of confusing him with his best friend, he immediately took reasonable steps to ascertain that she was consenting to “making out” with him.

[200] There is plenty of evidence from which I can infer that Mr. J. honestly believed that Ms. V. was communicating her consent to sexual activity including, digital penetration, and that she had the capacity to consent until she called him the wrong name. At that moment, he made the sensible choice to discontinue further sexual contact.

[201] Accordingly, I am left with a reasonable doubt about the mens rea element of the offence.

D. Conclusion:

[202] A young teenager drank alcohol to excess at a party. As a result, she was acting uncharacteristically and she made decisions that she does not recall. Despite falling down some stairs, her friend expressing frustration and other youths intervening to encourage her to sober up, Ms. V. continued to enjoy the party.

[203] There is no evidence, whatsoever, that Mr. J. was violent with Ms. V. during their brief encounter. In contrast, there is evidence that she fell down some stairs that was completely unrelated to her interactions with Mr. J. Afterwards, many hands were on her trying to help her to get her dressed and to stand up but she fell on the ground.

[204] In terms of the vaginal injuries, Ms. V. stripped off her own clothes including her pants and possibly her underwear. She fell, various times, onto a gravel driveway when she was partially nude.

[205] Any attribution of Ms. V.’s injuries to Mr. J. were assumptions untethered to the evidence as opposed to reasonable inferences based on established facts. To suggest that Mr. J. intentionally inflicted any of the injuries to Ms. V.’s body and/or face was incongruent with the evidence and unfair. I find that Mr. J. did not cause any of the injuries to her hands, knees, forearms, back or her face. In addition, I am left with a reasonable doubt about whether he caused the injuries to her vagina during the digital penetration.

[206] In terms of the sexual assault, it was incumbent on the police and the crown to fairly piece together the pieces of circumstantial evidence to reveal the true picture of what happened as opposed to filling in the gaps with speculation favourable to their theory. The purpose of a trial is the search for truth. I found the following quotes from the Kruk decision to be particularly apt:

It is an error of law to fail to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture.[48]

Reliance on illogical, untrue, or otherwise improper assumptions in assessing the evidence of an accused is wrong and remains reversible on appeal if it amounts to palpable and overriding error. It is just that such ordinary factual assumptions cannot be recognized, wholesale, as stand-alone errors of law.[49]

[207] A finding of guilt would be an unsupported conclusion founded on conjecture and biased assumptions. The crown has not proven either the actus reus or the mens rea beyond a reasonable doubt. Mr. J. is acquitted of committing a sexual assault.

1These reasons are subject to a publication ban pursuant to subsection 486.4 of the Criminal Code and section 110 of the Youth Criminal Justice Act

2Considering the ages of some of the witnesses, their initial video recorded statements were introduced for the truth of its contents once they adopted them pursuant to section 715.1 of the Criminal Code.

3Mr. O.’s evidence page 45

4Ms. M.’s statement page 17

5Ms. V.’s statement pages 4, 8 and 9

6Ms. L.’s evidence page 21

7Ms. V.’s statement page 19

8Ms. V.’s evidence page 100

9Ms. M.’s statement page 20

10Ms. Ke.’s evidence p. 54

11Ms. M.’s evidence page 97

12Mr. M.’s evidence page 16

13Ms. Mi.’s evidence page 76

14Counsel also invited that same speculation that they were together

15Mr. M.’s evidence page 6

16Mr. P.’s statement at page 9

17Ms. V.’s statement page 8

18Mr. P.’s statement pages 8 and 9

19Mr. O.’s evidence page 44

20Mr. O.’s evidence page 44 to 45 he also thought it could have been later between 11:15 and 11:30 p.m.

21Mr. O.’s evidence page 52

22Mr. O.’s evidence pages 71 and 72

23Ms. Mi.’s evidence page 57

24Ms. Mi.’s evidence page 58

25Ms. M.’s statement page 27

26Ms. Ke.’s evidence page 46

27Ms. Ke.’s also saw Mr. J. trying to put on her clothes page 61

28Ms. M.’s statement page 8

29Ms. M.’s statement page 22

30Ms. Ke.’s evidence page 61

31Ms. M.’s statement page 21

32Ms. M.’s statement page 25

33Ms. Mi.’s evidence page 55

34Ms. Ke.’s evidence page 51

35Ms. Mi.’s evidence page 58

36Ms. V.’s statement page 10

37Ms. V.’s statement page 24

38Page 33 June 22nd

39Ms. M.’s evidence p. 101

40Ms. V.’s statement page 23

41June 23^rd transcript page 3

42Email from the expert which is part of the agreed statement of facts

43R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 at para 65

44R. v. Kruk, supra at paras. 42 and 43

45Ms. L.’s evidence p. 37

46Section 273.1(1.1) of the Criminal Code

47Affirmed on other grounds [2000] S.C.R. 443

48R. v. Kruk, supra at para 65

49R. v. Kruk, supra at para 63