Court File and Parties

Court File No.: CR-24-101752

Date: 2025-11-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Crown

A. Nguyen, Counsel for the Crown

- and -

J.A. Accused

S. Gehl, Counsel for the Accused

HEARD: July 14-18, and 24, 2025

Publication Ban

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Decision

M. Bordin J.

Overview

[1] On June 8, 2022, H.M. and J.A. went to his high school prom together. He was 18 and in grade 12; she was 17 and in grade 11. J.A. is charged with sexual assault arising out of events that occurred in his bedroom after the prom.

[2] H.M.'s evidence in chief was tendered by way of a s. 715.1 video statement she gave to the police on June 26, 2022, and her oral testimony at trial. The Crown also called H.M.'s mother, L.M., and H.M.'s best friend, M.L. The accused testified in his own defence. He also called his mother, T.B.

[3] The theories of the Crown and defence can be succinctly summarized.

[4] The Crown alleges that the sexual contact in J.A.'s bedroom was non-consensual because H.M. was asleep. When she woke up to being penetrated vaginally by J.A.'s penis, she accused J.A. of rape.[1] The Crown's position is that J.A. took the opportunity, when H.M. was in the bathroom after the sexual assault, to search her phone to find something he could use against her to counter the rape allegation and prevent her from reporting the sexual assault and came up with the idea to accuse her of cheating.

[5] The defence theory is that J.A. and H.M. engaged in consensual sexual activity on prom night which caused H.M. physical discomfort, so they stopped. Then, while H.M. was in the bathroom, J.A. looked at her phone and found evidence that she was cheating on him. He says they were dating at the time of prom. He confronted her with his allegation of cheating, and she then accused him of rape to prevent him from telling people she had cheated.

[6] I first set out the applicable legal principles. I then review the evidence. Finally, I consider and apply the legal principles to the evidence.

Legal Principles

[7] J.A. is presumed innocent. I must consider all the evidence in determining whether the Crown has proven the elements of sexual assault beyond a reasonable doubt.

[8] That J.A. intentionally touched H.M. in a sexual manner is not in issue. The Crown and defence agree that this is a case of consent or no consent. In other words, the issue is whether the Crown has established beyond a reasonable doubt that H.M. did not consent to the sexual touching, and that J.A. knew that H.M. was not consenting, or was reckless, or wilfully blind to the absence of consent.

[9] Consent means the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1) of the Criminal Code. A complainant chooses whether to engage in sexual activity, the extent and scope of the sexual activity, and the conditions in which the activity occurs. Consent must be contemporaneous and continuous; there must be consent to each sexual act. Consent may be revoked at any time.

[10] Consent is subjective. It "requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question": R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 43. The relevant period of time for consent is while the touching is occurring: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 46 citing R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26. A complainant does not have to express lack of consent or revocation of consent for the actus reus to be established.

[11] No consent is obtained if the complainant is incapable of consenting to the sexual activity: s. 273.1(2)(b) of the Criminal Code. A complainant will only be capable of consenting if she has an operating mind able to understand the physical act, that the act is sexual in nature, the identity of the participants, and that she has the choice to refuse to participate: R. v. S.B., 2023 ONCA 784, 432 C.C.C. (3d) 169, at para. 49, citing J.A., at paras. 3, 36-37, 66; G.F., at paras. 29, 43, 47, 55-58. If the Crown proves the absence of any of these factors beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. See G.F. at paras. 57-58.

[12] Pursuant to s. 273.1(2)(a.1), an unconscious complainant cannot consent. To consent, an individual must be conscious throughout the sexual activity: see J.A., at paras. 3, 28, 31, 36-37, 66. If a complainant is asleep, they are not conscious and cannot consent.

[13] A complainant's evidence that she did not consent is a matter of credibility to be weighed in light of all the evidence, including "the complainant's words and actions before and during the incident, and by reference to 'the totality of the evidence, including any ambiguous or contradictory conduct by the complainant'": S.B., at para. 50, citing Ewanchuk, at paras. 29, 61.

[14] In addition, "[t]he evidence of other witnesses, including the accused, about the 'totality of the complainant's conduct' can be considered to determine whether it is consistent with the complainant's claim of non-consent": S.B., at para. 50, citing Ewanchuk, at para. 30. The same is true about H.M.'s evidence that she was asleep.

[15] However, what the accused thought about the complainant's state of mind is irrelevant. It is only relevant when a defence of honest but mistaken belief in communicated consent is raised in the mens rea stage of the inquiry: Ewanchuk, at para. 30.

[16] The defence of honest but mistaken belief in communicated consent "posits a situation in which there was no consent, but the accused, having taken reasonable steps to ascertain consent, believed honestly but mistakenly, that the complainant had communicated consent": R. v. Othman, 2025 ONCA 449, at para. 46. "The defence may arise in cases where the complainant and the accused have given similar versions of the facts, and the only material contradiction is in their interpretation of what happened": Othman, at para. 55.

[17] I am guided by the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe J.A.'s evidence, I must acquit. If I do not believe J.A.'s evidence, but it leaves me with reasonable doubt, I must acquit. Even if J.A.'s evidence does not leave me with reasonable doubt, I must ask myself whether, based on the evidence that I do accept, I am convinced of J.A.'s guilt beyond a reasonable doubt: W.(D.), at p. 748.

[18] The evidence of the accused in the W.(D.) formulation applies not just to the accused's testimony, but to exculpatory evidence led by the accused or arising out of the Crown's evidence.

[19] As a result of W.D., it's not necessary that I accept the defence's evidence to acquit: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 61. It's not a matter of choosing between the respective versions of events. I must determine whether, based on the evidence as a whole, I am left with a reasonable doubt as to the accused's guilt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8. If I cannot decide who to believe, the Crown has not established guilt beyond a reasonable doubt, and I must find J.A. not guilty.

[20] The evidence in this case calls to the forefront several myths about sexual assault. It is a myth that a "genuine" sexual assault victim will report the offence at the earliest opportunity. I have not drawn any adverse inferences regarding H.M.'s credibility based only on any delay in reporting to the police. It is a myth that "real" sexual assaults are mostly committed by strangers to the victim. It is a myth that "real" victims of sexual assault should have visible physical injuries. It is a myth that complainants always leave their abusive relationships. H.M.'s state of dress or undress does not mean she consented to sex. The fact that she was in J.A.'s bed at the time or they may have been dating does not mean she consented.

[21] It is trite to say that I may accept a witness's evidence, in whole or in part, or I may reject it all. I turn now to the evidence.

The Relationship

[22] H.M. and J.A. dated from late 2019 until approximately May or June of 2021. They agreed that when school started in the fall of 2021, they started spending time together again. J.A. asserted that they started dating again in the couple of weeks leading up to prom. He said they talked about dating, and that H.M. agreed that they were dating in all but in name. H.M. said they were not dating. She said that is how she felt about it. H.M. acknowledged they spent a great deal of time together doing many different things, and that they were getting "way closer" in the month before prom.

[23] J.A.'s mother was of the view that leading up to the prom in June 2022, J.A. and H.M. were dating. This was based on what she observed and was told by J.A.

[24] H.M.'s mother testified that after J.A. and H.M. broke up, they remained friends and continued to do things together. He would come to their house, watch movies, and hang out with their dog. She thought they were just friends. H.M. said that her mother did not really like J.A.

[25] J.A. and H.M. both said they loved each other before and after the night of the prom. Both H.M. and J.A. described their relationship as toxic.

[26] The allegations of cheating and the nature of the relationship between H.M. and J.A. is not relevant to whether H.M. consented, was more likely to consent, or is less worthy of belief. The evidence is important context to assess the evidence of J.A. and H.M. and the communications between them.

Prom Night

[27] H.M. and J.A.'s evidence about the general events of the prom were largely consistent. They agreed about their activities before attending prom and that they sat at the same table. They disagreed on some of the events of what occurred at the prom, including that H.M. denies being angry about J.A. talking to another girl and storming off.

[28] They agreed that J.A.'s mother picked them up after the prom, and they went back to J.A.'s house where H.M. changed into clothes she brought with her for the afterparty. They agreed that they went to the afterparty where they had a few drinks.

[29] They agreed that at one point during the afterparty they went into a bathroom and had a conversation. They disagreed on some of the details of what took place in the bathroom. At some point before 2 a.m. they took an Uber back from the afterparty and then made their way to J.A.'s house. Both knew that H.M. was not allowed to stay overnight at J.A.'s house.

[30] They agreed that at J.A.'s house they went to J.A.'s room where H.M. changed, that the lights were off and that they got on the bed. They disagreed about what occurred on the bed. They agreed that eventually H.M. went to the bathroom. There was some variance in their evidence as to what occurred when H.M. came out of the bathroom. They agreed that J.A. drove H.M. home.

[31] H.M. arrived home around 3:00 a.m. It is not disputed that her mother had been texting and calling her, but H.M. was not responding or answering until H.M. responded when she was on the way home. She was in a bit of trouble for getting home late.

The Events in the Bedroom

[32] H.M. said that when she got to J.A.'s room she changed into a pair of Polo pajamas because she was tired. J.A. says H.M. took off her sweater and pants and was in her underwear.

[33] They agreed that J.A. put something on the TV. H.M. said she got under the covers and J.A. was on top of the covers. H.M. said that J.A. asked to have sex about 8 times, and she said no, and J.A. respected her wishes. She was sleepy and wanted to have a nap before going home so she asked J.A. to set two alarms so she would wake up. She did not give him a specific length of time. She thought 25 or 30 minutes. She turned onto her side and fell asleep.

[34] The details of H.M.'s testimony about what happened next shifted each time she discussed what happened. She testified that she woke up to J.A. trying to put his penis inside her vagina. She woke up because she had pain in her vagina. She immediately started crying and ran to the bathroom because she was scared. H.M. also testified that she quickly put on a pair of Polo pajamas before going to the bathroom. At another point, H.M. testified that as soon as she woke up, she started crying, and so did J.A., and that he said that he thought she was awake and kept saying he was sorry.

[35] H.M. also testified that when she woke up, she was on her stomach, and J.A. was sitting on top of her, and had taken off her pants and underwear. She asked J.A. what he was doing. He told her he was giving her oral sex. She said she did not wake up when J.A. was giving her oral sex. However, she also said that after J.A. told her about the oral sex, she could see he was doing it as she slowly woke up, and she finally woke up when he put his penis inside her.

[36] J.A. testified that H.M. came over to him on the bed, put her arm and leg over him and began kissing him. He kissed her and touched her vagina and buttocks. He rolled over on top of her in a crawl position and kissed her. There were no words exchanged. J.A. said that he stepped off the bed and stood up, and H.M. moved to the edge of the bed, rolled over, and positioned herself with her buttocks in the air and her face down. J.A. said he performed oral sex on H.M., and she responded with sounds and moans. He said he stood, and H.M. reached through her legs to guide his penis into her vagina, telling him to go slow and rearranged herself to find a better position. J.A. says that he pushed too hard at one point and H.M. said "ow" and jolted forward. He asked if she was ok. She teared up and said that it hurt but that she was ok. She then said she would be right back and got up and went to the bathroom.

[37] J.A. denies that H.M. said that he raped her before she went into the bathroom.

[38] J.A. said that while H.M. was in the bathroom, he heard a notification go off on H.M.'s phone. He guessed her password and got into her phone. He checked her Snapchat account for her recent conversations and found things that established in his mind that she had been cheating on him, including explicit photos.

[39] J.A. explained his reasons for checking her phone in various ways. He said that he had a gut feeling or intuition that she was doing something behind his back, but he had no evidence. He also said he was curious, and the opportunity compelled him. He also said that he was not sure why he did it, and that things had been good up to that point in the night and in their relationship in the weeks leading up to prom night.

[40] In cross-examination, H.M. said that she was probably in the bathroom for a couple of minutes. Both agreed that when H.M. came out of the bathroom, J.A. was holding H.M.'s phone facing her, pointing at it, accusing her of cheating.

[41] J.A. said that H.M. put on the pajama pants at this point.

[42] H.M. testified in cross-examination that after she came out of the bathroom, she and J.A. mostly argued about what had happened before she had gone into the bathroom, but J.A. kept trying to talk about her cheating. She also testified that when J.A. showed her the phone and accused her of cheating, she did not want to talk about the rape anymore; she wanted to go home. She also agreed in cross-examination that after she came out of the bathroom, she did not say anything about being raped.

[43] J.A. testified that he kept asking H.M. who was on her phone, and in response she accused him of rape. They both agreed that H.M. asked to be taken home.

[44] H.M. said that in the car on the way home, J.A. was cursing at her, calling her names, and telling her to kill herself. She did not want to talk about her phone. She only wanted to talk about what he had done.

[45] J.A. said that on the way home he kept asking her about what was on the phone, and she kept saying it was nothing. J.A. said that while they were parked in front of H.M.'s house, he kept asking about the guys he saw on her phone. She began to cry, and said that he really hurt her vagina, and she was in pain. He apologized for hurting her during sex but denied raping her.

[46] H.M. arrived home around 3:00 a.m. L.M. testified that she could tell H.M. was upset when she came home.

[47] H.M. said that she and J.A. arranged for him to return some of the things she had left at his house. They did this by text and a telephone call. When J.A. came over the day after the prom to return her items, H.M. would not go to the door. Her mother went to the door to get her things from J.A.

[48] H.M. and J.A. were supposed to go to Grand Bend together with friends on June 9 and 10, 2022. H.M. said she was concerned that if she went, she and J.A. would argue the whole time and it would be uncomfortable. H.M. decided to stay home.

Events After Prom Night

[49] J.A. said he and H.M. had many phone calls on June 9 and 10 in which he accused her of cheating, and he denied raping her. H.M.'s evidence about whether they had phone calls on June 9 and 10 was inconsistent and contradictory. She testified that J.A. never denied raping her during any of their phone calls. I return to this issue later in my reasons.

[50] The Crown tendered 112 pages of text messages between H.M. and J.A. which were marked as Exhibit 2. Both relied on the texts. The first text is at 3:19 p.m. on June 9; the last is at 1:34 p.m. on June 10. I address these texts later in my reasons.

[51] School continued Monday, June 13, to Friday, June 17, the week following the prom. M.L. testified that H.M. was distant and quiet when she saw H.M. a few days after prom. H.M. testified that after school on July 14, she told her two friends, including M.L., about the alleged sexual assault. M.L. testified that H.M. was upset and crying.

[52] L.M. testified that H.M. was not herself in the days following prom night. She was spending more time in her room. She did not want to eat. She went to bed early. This lasted until about June 18.

[53] H.M. testified that at school that week, J.A. would find her in the halls and harass her and would walk by and say rude things to her. H.M. denied that J.A. ever told her in person that he did not rape her. J.A. testified that H.M. would find him in the hallways at school asking for another chance at their relationship. He would accuse her of cheating, and she would accuse him of rape.

[54] H.M. and J.A. exchanged messages on Tik Tok between 11:34 p.m. on Tuesday, June 14, and 10:23 p.m. on Thursday, June 16. These are part of Exhibit 3.

[55] In these texts, H.M. repeatedly asks and tries to persuade J.A. to talk to her, meet with her, hang out with her, and unblock her. She argues that raping someone is much worse than cheating on someone. In the texts, J.A. is reluctant to talk to or meet with H.M.

[56] The text messages show that between June 15, at 7:49 p.m. and June 16, at 10:23 p.m., H.M. sent about 15 unanswered messages in which she asked to be given another chance, said things like she does not want to lose J.A., would do anything for him, and wants nothing but him.

[57] On the advice of his boxing coach, who was a police officer, J.A. called the police because he believed that H.M. was going to make false allegations of sexual assault against him. He spoke with Const. Collins on June 16, 2022.

[58] J.A. testified that, during the last day of school, H.M. pressed him to admit that he raped her. He said he told her that he would not admit to something he did not do. He called the police a second time and was told someone would be in contact with him.

[59] H.M. and J.A. found themselves at the same party on June 17. Their evidence of what occurred at the party differed in several respects.

[60] H.M. said that J.A. was kicked out of the party by people because they all knew that he was toxic to her and heard the things he called her. J.A. said it was H.M. and her friends who forced him to leave because they were yelling at him and calling him a rapist.

[61] Both agreed that J.A. returned to the party later and they had a conversation in the bathroom at one point. H.M. said J.A. wanted to talk about her cheating, but she wanted to talk to him about taking advantage of her. They agreed it was H.M.'s idea to go into the bathroom where it was quieter. They agreed that H.M. held the door closed. They also agreed that J.A. posted copies of H.M.'s texts to him on social media. H.M. said the posts made it look like she was falsely accusing him of rape. They both agreed that J.A. removed the posts that same night.

[62] J.A. spoke with Const. Fusca on June 18, 2022.

There Was No Adoptive Admission by J.A.

[63] The parties agreed that the text messages which were made exhibits are not to be used as prior consistent statements to enhance the credibility of either J.A. or H.M. because of the repetition of the allegations contained in the texts. I do not use them for this purpose. The text messages may however be used to assess the credibility of J.A. and H.M., particularly with respect to the context in which the allegation of sexual assault arose and the sequence of events from the alleged offence to the charges. They may be used to understand H.M. and J.A.'s conduct and assess their truthfulness, or to assess if there is evidence of a motive to lie: see the dissent of Chief Justice Bauman in R. v. Langan, 2019 BCCA 467, at paras. 90-102, aff'd R. v. Langan, 2020 SCC 33, [2020] 3 S.C.R. 499.

[64] It is the Crown's position that J.A.'s responses to the rape allegations in the text messages constitute an express admission of having sexually assaulted H.M., or are, at best, equivocal denials where it was reasonable for J.A. to respond to H.M.'s allegations, and it would have been simple to do so. The Crown's position is that J.A.'s evidence explaining his responses and non-responses, and his evidence that he had denied the allegations in phone calls or in person, should be rejected because, based on his evidence, J.A. knew that these text messages created a permanent record, he knew that H.M. was making allegations of sexual assault, and he was concerned about false allegations of sexual assault. As a result, the Crown submits that I should reject J.A.'s evidence that he denied the rape allegations in person, and infer that J.A. admitted that he sexually assaulted H.M.

[65] J.A.'s position is that he denied the rape allegations on the phone and in person, and that his text messages do respond to the allegations. He submits that an inference of adoption should not be made.

[66] An admission may be implied from a party's silence in the face of statements made by others in circumstances where the party could reasonably have been expected to respond: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 247. A statement made by another in the presence of the accused is only admissible against him in circumstances where he expressly adopts the statement, or where, by his words, action, conduct or demeanour, he may be taken to have adopted it: Beauchamp, at para. 248.

[67] As restated recently in R. v. Gordon, 2022 ONCA 799, at para. 49, an inference of adoption may be available based on a person's words, actions, conduct, or demeanor in response to a statement made by another person and heard by the person whose response is being considered. Silence in the face of statements made by others, or an equivocal or evasive denial, may also constitute an adoptive admission where the circumstances give rise to a reasonable expectation of reply.

[68] Adoption by silence must be approached with caution. Not all people respond alike. An accused's reaction to statements about him may have different meanings. Responses, including silence, may be ambiguous. All relevant circumstances should be considered, including the social context, where appropriate. Other explanations must be considered: see Gordon, at paras. 47 and 53-55.

[69] The Crown provided the court with R. v. McLean, 2023 ONSC 139, and takes the position that this case is factually similar to McLean. In McLean, there was a single text message setting out some specific details of an allegation of sexual assault. It was not clear there were prior allegations of sexual assault.

[70] H.M. testified that J.A. never denied her accusations in person, by telephone, or by text. H.M.'s evidence about whether they spoke on the phone after prom night was internally contradictory. She said she was sure they spoke on the phone, that they might have been on the phone, that she did not recall being on the phone, and that if they were on the phone, it would have been for a minute arguing, and that she does not remember if they were on the phone or not. H.M. also said that J.A. never denied raping her during their in-person conversations because those conversations were just the two of them arguing. She says they were mostly about her cheating. Considering all the evidence, I find that H.M. and J.A. spoke on the phone on June 9 and 10 and spoke in person the following week.

[71] J.A. admits he was concerned about the rape allegations. He said he denied raping H.M. during their in-person conversations.

[72] He admits there is no text where he immediately responds to a text from H.M. that he raped her in which he says, "I did not rape you". He acknowledges that, in hindsight, his responses and his decision to ignore messages alleging rape could be interpreted in a negative light.

[73] J.A. testified that with respect to several messages from H.M. he understood her to be referring to the pain from him penetrating her too quickly. He denied that he apologized for or acknowledged the alleged sexual assault in any of his text messages. He said that where it was suggested that he apologized in his messages, the messages refer to what actually happened, and he was apologizing for hurting H.M. during consensual sex.

[74] J.A. testified that in some messages he was being sarcastic, and in others he was being an "a-hole". He was responding emotionally to H.M.'s messages. He said that he was trying not to entertain her allegations of rape.

[75] The Crown and J.A. each focused on specific messages to support their positions. But the context of the messages matters. The messages tendered in court were just a part of the text messages between J.A. and H.M. The messages are part of a long chain of text messages and cannot be considered in isolation.

[76] The evidence clearly establishes that H.M. and J.A. argued a lot. The text messages capture adolescent obsession, passion, and single-mindedness. They were exchanged during a very emotional and heated time for two young people. It is clear from the messages that in many instances both immediately responded, leaving little to no time for reflection, careful thought, or phrasing.

[77] It can be difficult to understand or perceive tone and intention in text messages. Text messages are often terse and, when sent quickly, can overlap with each other such that it appears people are not responding to the last message received. It can be difficult to fully understand the texter's intentions.

[78] Hearing H.M. and J.A. give evidence and hearing their manner of speech assists in giving some context to the text messages.

[79] The main contentious themes of the text messages are H.M.'s assertion that J.A. raped her, J.A.'s assertion that she cheated on him, and H.M.'s denial that she cheated because they were not a couple. Often, one allegation is made immediately after the other. Both did this. It is difficult to believe that their arguments in person or on the telephone would be much different or that the only thing they argued about was about the cheating allegation and not the rape allegation. On all the evidence, I find that they discussed the rape allegations by telephone on June 9 and 10, and in person the following week.

[80] I do not intend in these reasons to review all the June 9 and 10 text messages, but I have read through the text chain several times and have reviewed and considered the evidence of H.M. and J.A. about the text messages.

[81] H.M. clearly accused J.A. of rape in the text messages. It is reasonable to expect that he would have responded in some way to the rape allegations by H.M.

[82] The first text from H.M. addressing prom night was sent at 4:10:23 on July 9. It states: "n i've been thinking n i rlly don't think i'm gonna be able to get back to normal with you after last night."[2] It is not explicit what event is the subject of the message. It could be the alleged rape or that H.M. was allegedly caught cheating. The same is true for H.M.'s next substantive text at 4:12:16 where she writes, "it's just i'm really really down right now And I feel so gross" and for her responses "cuz last night", "like i've just been shaking" and "n i feel so sick" when asked why she felt gross.

[83] Similarly, J.A.'s question at 4:21:04, "Do you hate me and disgusted of me?" could be about the rape allegation, about him looking through her phone, or about his version of what occurred during sex. There is nothing in the text messages of June 9 which explicitly reference the rape allegations. There are text messages, such as J.A.'s of 4:11:38, which talk about H.M.'s contact with other males, but there are no explicit references to H.M. cheating.

[84] In the text exchange on June 10, H.M. references rape, raped, or raping approximately 20 times. In none of those messages does H.M. give any details of the alleged rape. She does not say she was asleep.

[85] At 11:26:48 on June 10, H.M. sent the third of three texts saying, "[You] would always say if someone did that to me you would kill them but, you did that to me". J.A. simply responded, "ik". It is not clear to which of the three messages he was responding. He says he was only acknowledging her statement that if someone did that to her, he said he would kill them. He acknowledged it looks bad. J.A. testified that, in responding to H.M.'s texts, he was responding in the moment based on what he understood her texts to mean and was not responding based on how it would look if someone looked at their texts later. This is the closest to a possible acknowledgment of the rape allegations from J.A. in the text messages. However, it cannot be considered in isolation.

[86] On June 10 at 12:09:45 H.M. texts, "I can't believe you would rape me" and he responds, "It's wasn't even like that [H.M.]". She immediately texts, "yes you raped me" and, "So you're saying you didn't?" J.A. responds with, "I'm saying that it's not like how ur narrating it like the way ur saying it is making it seem way worse then what acc happened bc I had no bad intentions I would never intentionally want to make u feel that pain." J.A. does not say, "I did not rape you" but his text is responsive to her allegations and at least equally consistent with his version of events. In addition, this exchange indicates that even H.M. interpreted J.A.'s response as a denial of rape.

[87] At 12:38:36 J.A. responded to six text messages from H.M. in which she said she would tell people about him raping her, said he raped someone, and called him a rapist by saying, "bruh like what". This is not the language of admission. It is the language of disbelief and perhaps exasperation.

[88] At 12:42:40 J.A. texts, "It's up to u rlly like if u genuinely hurt and scared from that like u think I ruined ur life bc of that like I get how ur feeling and apologized and tried evrything I could do to like tlak it with u but bro idk what else to do. Like ur saying ur gonna tell ppl and shi like ur just tryna black mail me and shi now ur jus tryna make shi way worse then u already have". At this point in the text exchange, the last reference by H.M. to rape is nine text messages earlier, after which there was an exchange of texts between the two. J.A. denied that he was acknowledging the rape allegations. He said he was simply playing along with what H.M. was saying and trying to be compassionate. J.A.'s text is unclear as to whether he is referring to the rape allegations, or to his version of events.

[89] At 12:46:06 on June 10, J.A. responds to another rape allegation with, "No I'll be upset and disappointed that the girl I lived cheated on me and is mad I found out and is now gonna go tell people shit to try to fucj up my reputation and hurt me much more then I already need to. And just ruin my life bc u wanna be petty, like u said we're done so idk why ur making this worse even more like why u need more drama hasn't there been enough?" At 12:47:32 J.A. replies to a text from H.M. by texting, "Liek ur just filled with lies when does it end?" This can be interpreted as a response resisting the allegation of rape.

[90] On June 10 at 12:53:40 H.M. states, "you raped me." Exhibit 3 demonstrates that this text alleging rape was followed by a text at 12:53:46 from J.A. which stated, "I'm done with u it's over" and at 12:54:05, "just stop we talked about all of that already". Like some of the other text messages, this suggests there had been a conversation about the rape allegations. H.M. responds with, "I'm fucking talking about it with people" at 12:54:23 and J.A. responds at 12:54:24 alleging that H.M. cheated on him by texting, "Like bro you just tryna turn this on me bc you cheated like just own up to it".

[91] At 12:57:34 on June 10, J.A. responds to H.M.'s texts in which she says, "you raped me" and, "you call that love" with a single word, "Bro". At 12:59:31 J.A. texts, "Bc bro you literally cheated and saying ur sorry then ur gonna do the most like evil shi like bro I said I'm sorry and I'll do anything to try to help but yo then I found out u cheated so idk what man I'm jus confused hurt and idk". The text indicates J.A. apologized about something. H.M.'s evidence is that J.A. never once apologized for the rape. He must then have been referring to something else, even in H.M.'s mind.

[92] At 1:05:36 on June 10, J.A. responds to a message from H.M. which asserted that she would not forgive him for what he did. He replied, "And ya ur not gonna forgive me bruh rlly ur acting like I I was intentionally tryna hurt u and fuck u up it wasn't like that at all ur just acting like that bc u cheated and ur mad". Less than a minute later, after H.M. texted, "Yeah I'm gonna hundred percent talking to people about it, goodbye fucking forever", J.A. responded with, "I was never intentionally tryna hurt u".

[93] There are other times in the text exchange where H.M. asserts that J.A. raped her, often as part of a text or one of a series of texts, to which he does not immediately respond. There are other times J.A. responds by asserting that H.M. is just mad because he caught her cheating.

[94] The Crown urges me to compare how H.M. responded to the allegations of cheating to how J.A. responded to the allegations of rape. The Crown says that H.M. responded by denying the cheating, but J.A. did not deny the rape allegations.

[95] J.A. referenced cheating over 20 times in the text messages. H.M. responded by denying that she was cheating about four times. At other times, she responded by alleging J.A. raped her but did not deny cheating. On some occasions, H.M. responded by denying that they were together. Other responses from H.M. to the cheating allegations are equivocal and do not deny the allegation of cheating. One example will suffice. At 12:54:24, J.A. wrote, "Like bro you just tryna turn this on me bc you cheated like just own up to it", and H.M. responded, "Keep trying to talk about it with you and you keep ignoring it telling me to stop talking about it". All of this is similar to how J.A. responded to some of the allegations of rape.

[96] Not everyone responds with the same kinds of words or language. In my view, the comparison does not assist in establishing that J.A. adopted the allegations of rape.

[97] Finally, on June 17, J.A. posted messages on social media to suggest that H.M.'s allegations of rape were false. Although those messages were not put in evidence, H.M. agrees that was the intention of the post.

[98] On all the evidence, I am satisfied that H.M. and J.A. discussed the allegations of rape by telephone or in person and that he likely responded to those allegations with denial. Considering the text messages in their entirety and the context of the circumstances surrounding the messages as well as the words used in the messages, it was not necessary for J.A. to respond to each and every allegation of rape in the text messages. He responds to many of them. Many messages from J.A. can be interpreted as a denial of the rape allegations, as a response to the facts as alleged by J.A., and as an assertion that H.M.'s allegations of rape are fabricated to counter an allegation of cheating. H.M.'s own understanding, as reflected in some of the messages, is that J.A. denied the rape allegations in some of his texts.

[99] I find that there was no adoptive admission by J.A. of the allegations of rape by H.M. in the text messages.

Motive to Fabricate

[100] J.A. asserts that H.M.'s motive to fabricate the sexual assault allegations was to avoid the allegation that she had been cheating. The Crown argues that J.A. had a motive to fabricate the cheating allegation to counter the rape allegations.

[101] As summarized in R. v. P.M., 2025 ONCA 208, at para. 67, it is improper to impose a burden on the accused to show that a witness has a motive to fabricate; an absence of evidence of a motive to fabricate cannot be equated with a proven lack of motive to fabricate because sometimes a witness's motives remain hidden; and it is improper to reason that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth.

[102] Neither side urged me to find that there was a proven lack of motive to fabricate, or that there was an absence of a motive to fabricate. There is evidence of a possible motive to fabricate for both H.M. and J.A. H.M. repeatedly threatened J.A. that she would tell people he raped her in response to J.A. asserting that she had cheated on him. J.A. accused H.M. of cheating in response to her texted allegations that he raped her.

[103] In my view, the evidence of fabrication is somewhat stronger with respect to H.M.

[104] As admitted by both H.M. and J.A., J.A.'s allegations of cheating arose within moments of the alleged sexual assault.

[105] On the other hand, H.M. did not expressly testify that she told J.A. that he had raped her before she went into the bathroom. It arises by inference from H.M.'s evidence that J.A. apologized and said that he thought she was awake. J.A. denies that H.M. alleged he raped her before she went into the bathroom. As noted earlier, H.M. was inconsistent or unclear as to whether they discussed her rape allegation at all after she left the bathroom, or to what extent they discussed it.

[106] Motive to fabricate is but one factor to consider in assessing credibility.

Analysis

[107] There is no reason to question the sincerity or credibility of L.M., M.L., or T.B. Their reliability was not challenged.

[108] H.M. and J.A. both admitted they behaved in a way that was not flattering. To varying degrees there are issues with both H.M.'s and J.A.'s evidence.

[109] J.A. was forthright and, for the most part, he answered questions directly. He was consistent and mostly unshaken in cross-examination. He admitted when a position contrary to the one he was advancing was possible, even if it potentially undermined his evidence. He quickly conceded when he was mistaken. He was not particularly evasive or unresponsive. He was not argumentative. He admitted things that did not put him in a positive light.

[110] However, there were some inconsistencies in J.A.'s evidence.

[111] At trial, J.A. did not recall talking about the trip to Grand Bend when he was in the car with H.M. outside her house after prom night. He admitted that he told the police that one of the things they argued about in the car was whether H.M. would go to Grand Bend. He said he had forgotten about the Grand Bend discussion because it was not a crucial part of what they discussed that night.

[112] J.A. testified in chief that when he was texting H.M. on June 9 and 10, he was in his bedroom, but readily acknowledged in cross-examination that he was in Grand Bend and was mistaken.

[113] J.A. admitted that his affidavit on the pretrial motion incorrectly identified September 2020 as the time when he started dating H.M. However, his trial evidence was consistent with H.M.'s evidence that their relationship started up in November 2021.

[114] In his three interviews with the police in June and August 2022, J.A. did not mention that he and H.M. were kissing on the bed. When describing the incident to Const. Collins and Const. Fusca, J.A. gave them somewhat fewer details of what occurred on the bed than he did at trial. He added some details when speaking to Const. Fusca. The added details were not inconsistent with his evidence at trial. His explanation that he left out details because his mother was there, is plausible.

[115] I do not find any material inconsistencies between J.A.'s evidence at trial and what he told the police about his understanding of his relationship with H.M. being exclusive, nor in his evidence about H.M. putting pants on when she came out of the bathroom and his statement to the police that H.M.'s clothes were on the ground so she just picked them up and put them on before they left. He also said she put on additional clothes before they left.

[116] J.A. was inconsistent in his reasons for why he checked H.M.'s phone. The Crown urges that his reasons did not make sense given that all was well with H.M. However, J.A.'s explanation that he was curious and saw the opportunity when he heard a phone notification makes some sense.

[117] The Crown asserted that J.A.'s evidence of what constitutes consent was incorrect or inconsistent. Specifically, the Crown focused on J.A.'s evidence that H.M. would smack his hand away if he touched her and she was not interested in sex. The Crown says this is inconsistent with J.A.'s evidence that H.M. was a willing mutual participant. I do not agree. J.A. also testified that H.M. took steps to initiate physical contact and moved and positioned herself closer to the edge of the bed for further sexual interaction, and she reached through her legs to guide his penis into her vagina.

[118] H.M.'s evidence contains contradictions, inconsistencies, and conflicts with her mother's evidence and the text messages on important issues. There was at times a vagueness to her answers.

[119] H.M.'s version of what occurred when she says she was awakened shifted. She was both unaware of the oral sex because she only woke up when H.M. inserted his penis in her, and she could see J.A. giving her oral sex as she was waking up before he inserted his penis.

[120] H.M.'s evidence about whether they discussed the rape allegation when she got out of the bathroom was inconsistent. She said they did not discuss the allegation of rape when she came out of the bathroom. She also said that when she came out of the bathroom, they mostly talked about what had happened before she went in the bathroom which is when the sexual assault is alleged to have occurred. And she said that she did not want to talk about the rape anymore when she came out of the bathroom.

[121] H.M.'s evidence about whether her mother knew of her plans to go to J.A.'s residence after the afterparty was internally inconsistent. In cross-examination she gave various answers including that she did not know if her mother knew; she believed that her mother knew; she thought that her mother knew; her mother did know; and H.M. probably told her mother at some point throughout the night.

[122] There was also inconsistency between H.M.'s evidence and her mother's evidence on this point. L.M. testified that H.M. did not say anything to her about going to J.A.'s house after the afterparty. L.M. did not know where H.M. was. H.M. was not responding to her calls or texts, and this concerned her. Their evidence was consistent that H.M. was out later than she was supposed to be, and that H.M. was not responding to her mother's calls and text messages. I accept L.M.'s evidence that H.M. did not tell her she was going to J.A.'s house after the afterparty.

[123] There was potential conflict between H.M.'s evidence that her phone was on "do not disturb" ("dnd") and therefore she did not receive notifications when she was in J.A.'s bedroom, and her mother's evidence that the phones of the family members were set to circumvent the dnd function so they would receive calls and messages from each other. H.M. and her mother have different kinds of phones, so it is not clear if they work in the same way. However, H.M. admitted that she stopped texting or communicating with her mother at some point, and certainly while she was at J.A.'s house following the afterparty. Further, H.M. responded to her mother's texts when in the car with J.A. on the way to her house.

[124] H.M., knowing she was already late and that she was not allowed to stay over at J.A.'s house, rather than promptly going home, ignored her mother's texts and calls and says she asked J.A. to set alarms so she could have a short nap. However, she did not specify to him a time for these alarms, but also said it was to be for no more than 30 minutes. The nap and setting of alarms does not make much sense in the circumstances.

[125] H.M.'s evidence about whether she and J.A. spoke on the phone in the day or two after prom night was internally contradictory. She did not recall whether they had phone calls on June 9 and 10 but acknowledged they had a call to arrange the return of her things. Although she was not sure there were phone calls, she was sure that J.A. did not deny raping her during the calls.

[126] H.M.'s June 15 to June 16 text messages pleading with J.A. contradict her evidence that it was J.A. who was harassing her and pursuing her. J.A.'s version of H.M. pursuing him at school is more consistent with the text messages. Finally, there is at least a suggestion in the text messages that H.M. was using the rape allegations to silence J.A.'s allegation that she cheated on him.

[127] H.M.'s demeanor after prom night is consistent both with having been assaulted and with the conflict she was experiencing with J.A., including his allegations that she cheated.

[128] Given the issues with H.M.'s evidence, I cannot accept her version of events. I am not satisfied beyond reasonable doubt that H.M. was asleep and did not consent to the sexual activity with J.A. While I am not certain that I can accept J.A.'s evidence of what occurred in his bedroom on prom night before H.M. went into the bathroom, J.A.'s evidence, both alone and together with all the other evidence I do accept raises more than a reasonable doubt about whether H.M. was asleep and did not consent to the sexual activity.

[129] Although not necessary for my decision, I return briefly to the defence of honest but mistaken belief in communicated consent. The defence of honest but mistaken belief in communicated consent was not raised by J.A. H.M. and J.A. gave diametrically opposed versions of what happened in the bedroom. She testified she was asleep and woke up to sex at some stage. He testified she was awake and a willing, consensual participant in sexual activity. The acceptance of either version of events would necessarily involve the rejection of the other: see Othman, at para. 57. I am of the view that the defence would not have been available in these circumstances.

Conclusion

[130] In conclusion, I find J.A. not guilty of sexual assault.

Justice M. Bordin

Released: November 10, 2025

Footnotes

[1] Throughout these reasons I use the term "rape" although it is not the legal term used by the Criminal Code because it is the term used by H.M. and J.A. in their evidence and in their communications with each other.

[2] I have used direct quotes from the text messages without correcting them or indicating typos. H.M. and J.A. testified about the meaning of short forms and certain words.