WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: November 3, 2025

Court File No.: 24 Y4810514

Toronto Region

Between:

His Majesty the King

— and —

DP, a young person

Before: Justice C. Faria

Heard on: July 21, 22, 23, 24, and 25, 2025

Oral Reasons: October 9, 2025

Written Reasons Released: November 3, 2025

Counsel

Pamela Santoro & Leanna Guzzo — counsel for the Crown

Heather Gunter & Annamaria Enejajor — counsel for the accused DP

Decision

Faria J.:

I. Introduction

[1] DP was charged with sexually assaulting ML during a sleepover on her 16th birthday, contrary to s. 271 of the Criminal Code. He was 15 years old at the time. The Crown proceeded by Indictment.

[2] The Crown called the complainant and two witnesses. DP testified in his own defence.

[3] I found DP not guilty of the charge on October 9, 2025, and provided some oral reasons with fulsome written reasons to follow. [1] These are my written reasons.

II. Summary of the Evidence

ML Evidence

[4] On the evening of January 19, 2024, ML and a group of her friends went to EZ's house for her birthday. In total, the group of 8 consisted of 7 girls, including ML, and DP was the only boy. EZ's house is a 4-storey townhouse in the north part of the city. The 2nd floor has two bedrooms, EZ's and her sister's room, as well as a bathroom. EZ's parent's bedroom is on the 3rd floor. EZ's mother was home working in the basement that night.

[5] ML, now 17 years old, testified the group arrived at EZ's house at about 7:00 or 7:30 p.m. and went to EZ's room. The decision to sleep over had already been made. They all played games; listened to music; drank from one bottle of dark alcohol, which she thinks was whiskey; and went outside to smoke weed. She saw her close friend DP drink and smoke weed too. She also thought he was on acid due to his behaviour on the bus when they travelled to EZ's house.

[6] ML testified she drank about 5 or 6 shots, and after smoking weed, got drowsy and did not feel well. She went to the bathroom and thought she was going to throw up. She described herself as very drunk. She asked for help. One friend, who she thinks was IM, held her hair. IM and EZ helped her to EZ's sister's room where there were two beds, and she went to sleep.

[7] ML testified that P, another close friend, was drunk too. P passed out on the same bed as her, closer to the wall. At some point, she knew that IM went to sleep in the second bed in the room.

[8] ML testified she was sleeping, her head facing the wall, when she woke up to a jabbing pain in her butt, specifically her anus. She felt penetration. ML testified, "I cannot say a hundred percent, but what it felt like and what I can say this: it was his genitals…his penis." She turned around and saw DP lying on the bed behind her. She said to him: "what are you doing?" DP said nothing. His mouth was open. He looked shocked, surprised, and scared. He got up and walked out of the room fast. He was holding his pants and did not have time to pull them up. Her own underwear and pyjama pants were pulled down to the middle of her thighs.

[9] ML testified DP was one of her best and closest friends at the time. She was confused and in denial. She saw P sleeping in the bed with her but did not wake her up. She tried to go back to sleep and did. She felt some pain when she woke up. She did not see DP until the next morning.

[10] In cross-examination, ML confirmed that when she gave her statement 3 ½ weeks after the sleepover, she told police she was not "100% sure" about what happened. She testified that she meant she was not sure what to do about what happened, as she was close to DP and understood the seriousness of the allegations. She confirmed that, at the time she spoke to police, she said in her statement, "you can tell something happened. And you don't know what it is. That's why like I wasn't a hundred percent sure." That was one of the reasons she clarified some of the timelines with her friends in the morning.

[11] She agreed she consulted her friends about where DP was after she went to sleep, where he went to sleep, what he did, and the times that her friends saw him.

EZ Evidence

[12] EZ, 17, testified she went to ML's house at about 5 p.m. that day with a group of friends to celebrate ML's birthday. The group of 8 ended up at EZ's house at about 10 p.m. They all slept over, as invited to by her mother.

[13] EZ confirmed:

Everyone hung out in her room on the second floor. She only smoked weed. All the others both drank alcohol and smoked weed, including ML and DP.
ML was "pretty intoxicated" before midnight and was the first one in bed. She and IM helped ML from the bathroom to her sister's room. They put her on one of the two double beds in the room.
She did the same thing for P shortly thereafter, who was also very drunk. P was put in the same bed as ML, but closer to the wall.
She noticed DP was both intoxicated and high, as he could not hold a spoon properly when he was eating cereal.

[14] EZ testified DP was the 3rd person to go to bed. He slept on the edge of her bed in her room on the 2nd floor. From around midnight to till 3 a.m., the girls who were awake went up to her parents' room on the 3rd floor.

[15] While they were hanging out on the 3rd floor, at some point, EZ went into her room while DP was sleeping and took his phone. She and IM took selfies on his phone to prank him. DP was asleep when she put DP's phone on her dresser in her room. At some point, DP also came up to the 3rd floor wearing leggings and asking where his pants were. The girls said they did not know. She assumed DP went back to her room to sleep.

[16] EZ testified she went to bed at 3:00 a.m. in the second bed with IM, in the same room as ML and P who were asleep at the time. They were in the same position she had left them in. At 6 a.m., ML woke EZ up and told her DP had done something to her.

IM Evidence

[17] IM, also 17 years old, testified:

She went to EZ's house to celebrate ML's birthday
She thought she would go home after, but EZ's mother invited the group to sleep over as it was late, and they did.
Most of the teens drank alcohol and smoked weed including herself, but she did not know how much each person drank or smoked, and what they were drinking.
ML became "pretty drunk," went to the bathroom, got sick, and she and EZ helped put her in bed in EZ's sister's room around 11:30 p.m.
P was drunk too and went to sleep next to ML on the same bed, but closer to the wall and ML closer to the door.
IM went to check on ML a few times after.

[18] IM also testified that:

She hung out with the other girls in the 3rd floor bedroom, and at one point DP came up to the 3rd floor asked if anyone had seen his pants.
She estimated that DP was downstairs on the 2nd floor alone for a "good chunk of time," though she does not know how long.
She could not remember when she went to bed, but believes she was the 3rd person to go to sleep.
She slept in the second bed in the same room where ML and P were sleeping.
EZ joined her in bed sometime later.
She never saw DP go into the room ML was sleeping in.
ML woke her up around 6 a.m. and told her DP had done something to her.

DP Evidence

[19] DP testified to much of the same narrative as that of ML, EZ, and IM, but with more detail about some particulars. He was 15 at the time of the allegation and is now 17 years old.

[20] He testified that P invited him to join the group of girls to celebrate ML's birthday. School let out at 3 p.m. and the group, including 2 other boys, went to Withrow Park which is close to his school in Riverdale. He remembers they hung out at their usual spot for about an hour. The two other boys left because they lived close by, and the group went to ML's house around 5 p.m. for her to grab something but they lingered. He thinks they may have gone downtown because he remembers being at a subway station that he associates with the Eaton Centre.

[21] The decision to go to EZ's house was made at the Broadview subway station, which he remembers because he was looking at a hospital sign close by. DP testified that when he looked at his phone, it was 10 p.m. His curfew was 11:30 p.m.; he had to decide whether he was going to make curfew and walk home, which was 10 minutes away, or go to EZ's house. He was having a good time, so he went with the group.

[22] He believes they arrived at EZ's house at 11 p.m., and he thought it was far and in an unfamiliar area. Once there, he introduced himself to her mother, and the group went to EZ's room. They drank, and he specifically remembers drinking Fireball. He had 7 to 10 sips from the bottle. There were 3 or 4 types of alcohol in EZ's room.

[23] DP testified that around 11:30 p.m., he was looking for someone to go home with as he was scared that he would get lost if he left alone; however, no one was leaving. Shortly thereafter, EZ's mother suggested they all sleep over. He texted his parents and they said he could stay.

[24] DP saw ML drinking, and not feel well. He saw her in the bathroom. He saw EZ and IM help ML to EZ's sister's room. He cannot remember if they all went to the balcony to smoke weed before or after ML was put to bed. The weed was his. They smoked it from EZ's bong.

[25] DP testified things started to slow down when he was in EZ's room with C. and D. He was scrolling on his phone, then went to sleep C. and D. were still in the room. He woke up about an hour later, drank some soda water, and did not see his cargo pants on the floor by the bed where he had put them. He went to the 3rd floor where he heard voices and asked EZ, C., and D. if they had seen his pants. They said they had not. He went back to bed.

[26] DP testified he was the last one to wake up the next day. Neither C. nor D. were in the room. He drank soda water and threw up right after in the room. Later, he found his pants hanging on the shelf. He texted his parents to pick him up and they did.

[27] DP testified he did not go into the room where ML was sleeping. He did not get into the bed with her. He did not put his penis in her anus. He did not sexually assault her.

III. Legal Principles

[28] As in every criminal case, DP is presumed innocent. The burden rests on the Crown to prove each essential element of the offence beyond a reasonable doubt. The burden never shifts. Reasonable doubt is a doubt based on reason and common sense from the evidence or lack of evidence. [2]

[29] When considering the credibility and reliability of a witness, I may accept some, none, or all of a witness' evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented." [3]

[30] In this case, I am mindful that the witnesses are still not yet adults and are testifying about the sleepover that happened when they were all in their mid-teens. Though the standard of proof remains the same, the Supreme Court of Canada established a "common sense approach" to assessing the credibility and reliability of children that recognizes their developmental stage in life. The assessment must reference their mental development, understanding, and ability to communicate. Absolute precision as to the details of an alleged offence is unrealistic and unnecessary. [4]

[31] As DP testified, the applicable analytical framework is that of W.(D.). [5]

i. If I accept DP's evidence, I must acquit him.

ii. Even if I do not accept DP's evidence, I must acquit him if his evidence raises a reasonable doubt.

iii. Even if I do not accept DP's evidence, nor does it raise a reasonable doubt, I must be satisfied beyond a reasonable doubt the Crown has proven every element of the offence on the totality of the evidence I do accept.

[32] I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, or what kind of person may or may not be a complainant of sexual assault. I also instruct myself not to make unwarranted assumptions on the kind of person who may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. [6]

IV. Position of the Parties

[33] Ms. Guzzo for the Crown submitted ML is both a credible and reliable witness, unshaken on the core of the allegation. The evidence of the 3 witnesses who were with ML and DP that evening support the main elements of ML's narrative, though they were not present during the actual event in dispute. She submitted the court should reject DP's evidence as it does not raise a reasonable doubt; instead, the court should accept ML's evidence and find DP guilty of sexual assault.

[34] Ms. Enejajor for the Defence submitted ML is unreliable. She submitted that while ML appeared to genuinely believe DP got into bed with her and sexually assaulted her, she was vague, inconsistent regarding the surrounding events and very intoxicated at the time. She submitted that DP's evidence that no sexual activity occurred be accepted, and if not accepted, it raises a reasonable doubt, and the court should acquit DP.

V. Analysis

[35] On the charge of sexual assault, the Crown must prove the following beyond a reasonable doubt: DP touched ML directly or indirectly; he touched her intentionally; the touching took place in circumstances of a sexual nature; ML did not consent to the sexual activity in question; and DP knew that ML did not consent to the sexual activity in question.

[36] There is no dispute that if I find DP did get into bed with ML while she slept, lay behind her and inserted his penis into her anus, the Crown has proven all the elements of the charge.

[37] The issue is whether ML's evidence is sufficiently reliable to be accepted beyond a reasonable doubt, and whether DP's evidence raised a reasonable doubt.

[38] ML is clearly bad with time. She believes she arrived at EZ's house at 7:00 or 7:30 p.m., while everyone else agreed it was much later in the evening, at 10:00 or 11:00 p.m. She testified she was the last to wake up in the morning around 10:00 or 11:00 a.m., but EZ and IM testify she woke them up at 6:00 a.m. ML does not remember where she was before she went to EZ's house, but EZ and DP testify they were at her house. ML firmly believed the plan was to sleep over at EZ's, but EZ, IM, and DP all say the decision was made at EZ's house because it was late and EZ's mother invited them to stay the night. ML testified DP was wearing skinny jeans at that time of the assault, but EZ and DP testified he was wearing leggings during that time. ML told police she was lying on her side facing the wall, but testified she was on her stomach with her head facing the wall.

[39] However, I find none of these inconsistencies cause me concern. They are peripheral and minor. The timeline of earlier events, such as when decisions were made and what time people woke up, are not core issues—especially for young people testifying about an event over a year and half ago.

[40] In addition, all the witnesses were clearly intoxicated, or high, or both. Skinny jeans and leggings can easily be mistaken for each other. Whether ML was on her side or stomach is of no importance. She was facing away, and DP was behind her. That did not change.

[41] The key issue is the assessment of the reliability of the 2 minutes that constitute the offence.

[42] ML testified candidly. She easily acknowledged when she could not remember, when she said something different in her two police statements vis-à-vis her evidence, and she credibly explained several such differences. She apologized for not remembering or if she misspoke.

[43] There is no dispute that ML is a credible witness. Indeed, counsel for DP acknowledges that it appears ML truly believes DP got into bed with her and sexually assaulted her.

[44] As credible, honest, straight-forward, consistent, and persuasive as ML's evidence was about the core allegation, I do have concerns about the reliability of her evidence on the details of the relevant estimated 2 minutes when the offence occurred.

[45] ML honestly told police that "in the moment" she might have wondered if it was a bad dream, and that she doubted herself. That is why she clarified some details about that evening with friends, and what happened after she went to sleep. She discussed DP's whereabouts and admitted that the assault was "not a normal event" that she discussed with her friends after.

[46] She told police she was "disoriented" and "confused" at the time. In court, ML explained that her disorientation and confusion was about her emotions, not about what happened.

[47] ML was also very sad and experienced pain, which gave her more confidence to, "realize, yes. That's what happened to me."

[48] To be clear, these are all understandable, reasonable responses to the experience ML testified to having gone through.

[49] However, ML testified that she was "sure" about what happened when she woke up after she was put to bed, but she also testified she said she could not say to the police she was "100%" certain. She believes DP put his penis in her anus for 20 seconds or so.

[50] I believe ML when she testified that something happened to her that night. However, believing a witness is not the same as accepting a witness' evidence as reliable to the standard of proof of beyond a reasonable doubt.

[51] I must also consider DP's evidence.

[52] DP was candid. He was open about the medications he was taking at the time. He was detailed about why he thought he took "7-10" sips. He explained why he thought alcohol did not affect him differently, regardless of whether he took medication, since he had experimented drinking with and without taking medication. He was specific as to what enabled him to say where particular events happened, such as being in a subway station he associates with the Eaton Centre, seeing the hospital sign when the group discussed going to EZ's, and having to decide at 10:00 p.m. whether to go home to make his 11:30 p.m. curfew. He admitted he was scared he would get lost if he left alone, that drinking made him silly and do things he would not otherwise do, such as let the girls put make-up on him. He was honest about being annoyed when he did not know where his pants were, that it nagged at him, and that he threw up in EZ's room.

[53] On everyone's evidence, including DP's, he was on medication, drunk, and high. This likely clouded his judgement and his memory. DP too was credible, but his evidence too raises reliability concerns. He may very well have gotten into bed with ML, and just like other moments in the evening, does not remember doing so.

[54] Having been friends, both ML and DP testified in a distraught manner about what they recalled occurred that night. Both ML and DP seemed to have no ill will towards each other, even now.

VI. Conclusion

[55] In essence, these were two clearly intoxicated and high young people. The reliability concerns of ML's evidence about the relevant 2 minutes on the night in question, paired with the plausibility of DP's evidence that the event did not occur, lead me to the conclusion that the Crown has not met its high burden. The charge has not been proven beyond a reasonable doubt.

[56] I find DP not guilty of the charge of sexual assault.

Released: November 3, 2025

Signed: Justice Cidalia C.G. Faria