Court File and Parties

Court File No.: CR-25-00000284-0000 Date: 2025-11-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Frank Stronach, Defendant/Applicant

Counsel: Jelena Vlacic and Julia Bellehumeur, for the Crown/Respondent Leora Shemesh, for the Defendant/Applicant

Heard: November 10, 2025

Reasons for Decision

Certiorari Application

A. Introduction

[1] Frank Stronach is charged with multiple historic sexual offences involving seven separate complainants. He has elected to be tried in this court without a jury, and I am the assigned trial judge. The trial is scheduled for February 2026 and pretrial motions proceeded before me commencing November 10, 2025.

[2] Because of the offence dates and charges involved, Mr. Stronach was entitled to a preliminary hearing for two of the complainants. He was committed for trial on both. The defence now applies by way of certiorari for an order quashing Mr. Stronach's committal for trial on Count 1 on the indictment, in which Mr. Stronach is charged with raping the complainant L.S. contrary to what was then s. 144 of the Criminal Code. The rape is alleged to have occurred between July 1, 1980 and July 31, 1981.

[3] The preliminary hearing proceeded before Freeman J. in the Ontario Court of Justice in April 2025. On April 17, 2025, the preliminary hearing inquiry judge provided oral reasons for her decision ordering Mr. Stronach to stand trial on this charge.

[4] After hearing argument, I dismissed the defence application, indicating that written reasons would follow. Those reasons are set out below.

B. The Challenged Decision

Facts

[5] The complainant L.S. was the only witness at the preliminary inquiry with respect to this count. L.S. testified that she was at a Toronto bar known as Rooney's to celebrate her 21st birthday with two women who worked with her at horse stables owned by Mr. Stronach. Rooney's was also owned by Mr. Stronach. She said Mr. Stronach brought champagne to their table. She described an incident on the dance floor with Mr. Stronach and later in a booth which are the subject of an indecent assault charge against him in Count 2 of the indictment, but which were not part of the preliminary hearing.

[6] L.S. testified that she has no memory of anything that happened between being in the booth with Mr. Stronach at Rooney's and waking up in a bed with Mr. Stronach on top of her and having vaginally penetrative intercourse with her. She said that she knew in that moment that she was not consenting, but said nothing to Mr. Stronach to indicate her lack of consent. She then said she had to go to the bathroom and extricated herself from the situation.

[7] The complainant testified that she would not have consented to have sex with Mr. Stronach because: he was old (she was 21, he was 47); he was her boss; and he was married. She also based her belief in non-consent on her memory of her reaction to Mr. Stronach's conduct at Rooney's.

[8] The preliminary inquiry judge summarized the absence of evidence as follows:

…we have no evidence of how the complainant left the bar, got to the apartment, how her clothes came off. No suggestion her clothes were torn, no evidence of injury or bruising, no evidence of bad conduct, no evidence of words, actions, or behaviour of the complainant or Mr. Stronach in the hours preceding the "becoming aware" in the apartment. I am using the term "becoming aware" as opposed to waking up or conscious because we simply don't know.

[9] The preliminary inquiry judge noted that there was no evidence as to why L.S. had no memory of these events, noting that she "wasn't necessarily intoxicated."

Analysis by the Preliminary Inquiry Judge

[10] The preliminary inquiry judge framed the question before her as being one of mens rea based on L.S.'s belief that she "would not" have consented and whether this was "sufficient to establish that Mr. Stronach was aware there was a lack of consent, or he knew there was a risk but went ahead anyways."

[11] The preliminary hearing judge referred to the well-known test in Shephard as the law to be applied. She concluded that based on the complainant's testimony "there is an available inference that she would not have consented and thereby the available inference that there would not have been firm consent." She therefore concluded that the Crown had met the limited test for committal.

C. Analysis

[12] Both counsel rely on the Supreme Court of Canada's 2001 decision in R. v. Arcuri as continuing good authority for the test to be applied by a preliminary inquiry judge in determining whether to commit an accused for trial. The judge must not make findings of credibility, nor determine the weight to be given to the evidence. The test is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty."[^1]

[13] Defence counsel argues that notwithstanding this general rule, in a circumstantial case Arcuri requires the preliminary hearing judge to engage in some limited weighing of the evidence and the preliminary hearing judge in this case failed to do that and thereby exceeded her jurisdiction. The defence relies on paragraph 23 of Arcuri which states:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[Emphasis added]

[14] In its very recent decision in R. v. Rioux, the Supreme Court of Canada provided substantial guidance on the use of circumstantial evidence to establish issues of consent in sexual assault trials. The Court was clear that all constituent elements of sexual assault, including the absence of consent and the mens rea of the accused, can be proven by direct or circumstantial evidence, or any combination of both.[^2] Further, when the complainant has no memory of the events, circumstantial evidence alone may establish an absence of consent. That evidence may include "the complainant's beliefs and assumptions about how they would have acted in the circumstances."[^3]

[15] The Supreme Court in Rioux reiterated the well-known test from R. v. Villaroman that where the proof of an essential element of an offence is based on circumstantial evidence, the trier of fact can only find the accused guilty if the existence of that essential element (here, the absence of consent) is the only reasonable or rational inference that can be drawn from the evidence.[^4] However, Rioux was an appeal from the decision of a judge after a trial. Different considerations apply on certiorari reviewing a committal for trial after a preliminary hearing.

[16] The Crown relies on *R. v. Jackson*[^5] as authority for the proposition that where circumstantial evidence is capable of supporting more than one reasonable inference and one of those inferences is consistent with the guilt of the accused, the preliminary inquiry judge must commit for trial. This was an appeal from my decision on a certiorari application in a case where the preliminary inquiry judge committed Mr. Jackson for trial on a charge of second degree murder. In my decision on the certiorari, I reviewed the jurisprudence on the test for committal for trial and how that should be applied when all the evidence on an essential element was circumstantial. I started with the fact that a jury would be instructed that they could not convict if there was a rational inference from the circumstantial evidence that was inconsistent with guilt. From there, I concluded that the logical extension from this was that a properly instructed jury, acting reasonably, could not be satisfied beyond a reasonable doubt of the guilt of the accused based solely on circumstantial evidence if there is another rational inference that could reasonably be drawn from the evidence. I therefore held that because there was a rational inference that was consistent only with manslaughter (rather than second-degree murder), Mr. Jackson should only have been committed for trial on manslaughter. The Court of Appeal very clearly rejected that rationale and held that the role of the preliminary inquiry judge is not to weigh whether there could be other competing inferences. As long as there is one rational inference consistent with guilt, the preliminary hearing judge (and the superior court judge on certiorari) must go no further. Any further analysis of inferences that can be drawn is not part of the "limited weighing" of evidence referred to in Arcuri. Only reasonable inferences favourable to the Crown may be taken into account at this stage. The ultimate fact finding must be left to the ultimate trier of fact at trial, whether that is a jury or a trial judge sitting without a jury.[^6]

[17] I find that the preliminary inquiry judge correctly applied the test for committal. There was some available circumstantial evidence sufficient to support an inference favourable to the Crown that Mr. Stronach forced sexual intercourse on L.S. knowing she was not consenting. The existence of other possible inferences or the strength of the Crown's case are not relevant considerations at this stage.

D. Conclusion

[18] In the result, the defence application is dismissed. This offence alleged in Count 1 of the indictment will proceed to trial.

MOLLOY J.

Released: November 28, 2025

[^1]: R. v. Arcuri, [2001] 2 S.C.R. 828, at para. 21. [^2]: R. v. Rioux, 2025 SCC 34 at paras. 56-75, and 79-86. [^3]: Ibid, at para. 86. [^4]: Ibid at para. 60; *R. v. Villaroman*, 2016 SCC 33, [2016] 1 S.C.R. 1000. [^5]: *R. v. Jackson*, 2016 ONCA 736, reversing, *R. v. Jackson*, 2016 ONSC 1069. [^6]: *R. v. Zamora*, 2021 ONCA 354; *R. v. Kamermans*, 2016 ONCA 117.