REASONS FOR JUDGMENT

I. Introduction

1D.H. is charged with one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.

2On the evening of March 7, 2024, the complainant met D.H. at his office. The two intended to have some drinks and catch up. The pair consumed several drinks over the course of the evening. Both were intoxicated. On D.H.’s evidence, the complainant consumed a tetrahydrocannabinol (“THC”) edible cookie. The complainant does not recall eating an edible.

3In the early morning hours of March 8, D.H. and the complainant ended up lying down on a large couch in the recreational area of D.H.’s office.

4What happened on that couch is the subject of this one count of sexual assault.

5The complainant testified that she and D.H. fell asleep on the couch. She then briefly awoke to the feeling of something on her cheek. When she opened her eyes, she saw a penis on her cheek. She fell asleep again. She next awoke to a flash of light. At that time, the complainant’s knees were bent upwards, and her pants and underwear were down by her ankles. Her shirt and bra were pulled up and her breasts were exposed. She saw D.H. between her legs, using his phone to record her vagina. The complainant took D.H.’s phone and looked through the pictures.

6Upon obtaining D.H.’s phone, the complainant saw one picture which showed a woman who had her hands tied to her feet. The complainant believed that she was the woman in the picture. D.H. then tried to take his phone back. During this struggle, the complainant had an opportunity to smell D.H.’s hand. The complainant believed that D.H.’s hand had a distinct odour, which she attributed to the smell of bacterial vaginosis, a condition she was experiencing at the time.

7D.H.’s testimony about what occurred on the couch was very different.

8D.H. testified that, after a long night of drinking, the two ended up on the couch. While on the couch, he gave the complainant a consensual back massage. She removed her shirt and bra. The back massage progressed to below the complainant’s back, her buttocks and to her feet. Eventually, the complainant and D.H. started to kiss, which then progressed into mutual masturbation. The complainant then began to touch her vagina. Afterwards, the complainant and D.H. fell asleep.

9When D.H. woke up, he saw that the complainant was topless and asleep. In what can only be described as a startling invasion of the complainant’s privacy and dignity, D.H. “helped [himself] to a picture”. Three pictures to be exact. The complainant awoke after the third picture. She got upset and a struggle ensued over D.H.’s phone. Eventually, D.H. gave the complainant his phone, but it was locked. D.H. got the phone back and deleted the pictures. He showed the complainant his phone to confirm that no picture remained. D.H. denies touching the complainant while she was asleep.

10Resolving this conflicting evidence is my primary task in determining whether the Crown has proven, beyond a reasonable doubt, that D.H. sexually assaulted the complainant.

II. Governing Legal Principles

(a) Elements of sexual assault

11The elements of sexual assault are not in dispute. As such, I will summarize the elements of sexual assault.

12The actus reus of sexual assault is comprised of three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent (see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25). Touching is proven objectively, and it is sufficient for the Crown to prove that the accused’s actions were voluntary (see Ewanchuk, at para. 25). Voluntariness means that the conduct in question must be willed (see R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, at p. 74).

13The sexual nature of the contact is also determined objectively. The Crown need not prove that the accused had any mens rea with respect to the sexual nature of their behaviour (see Ewanchuk, at para. 25; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302).

14For the purpose of determining the actus reus, “consent” means that the complainant in her mind wanted the sexual touching to take place (Ewanchuk, at para. 48). The focus is only on the complainant’s state of mind. For the actus reus, the accused’s perception of the complainant’s state of mind is irrelevant. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 37). If the complainant testifies that they did not consent, and the trier of fact accepts this evidence, then there was no consent (see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89; Ewanchuk, at para. 31).

15While a complainant’s testimony is the only source of direct evidence as to their state of mind, credibility must still be assessed by the trier of fact considering all the evidence. It is open to an accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against their assertion that, in their mind, they did not want the sexual touching to take place. A complainant’s testimony that they did not consent is a matter of credibility to be considered within the context of the rest of the evidence (see Ewanchuk, at paras. 29–30; R. v. Blanco, 2026 ONCA 433, at paras. 28–29).

16“Consent” is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Consent requires the complainant’s conscious agreement to engage in every sexual act in a particular encounter (see J.A., at para. 31). Consent must be freely given at the time the sexual activity in question occurs (J.A., at para. 34; Ewanchuk, at para. 26) and can be revoked at any time (see s. 273.1(2)(e); J.A., at paras. 40, 43). Finally, consent must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act” and “the sexual nature of the activity” (see R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57).

17 Section 273.1(2) of the Criminal Code further clarifies the circumstances in which consent cannot be obtained. Among other things, s. 273.1(2) provides that no consent is obtained if the complainant is unconscious (s. 273.1(2)(a.1)), or if the complainant is incapable of consenting to the activity for any reason other than being unconscious (s. 273.1(2)(b)) (see R. v. Rioux, 2025 SCC 34, at para. 63). “Incapacity” is a broader residual category that extends beyond unconsciousness. Section 273.1(2)(b) 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 (see Rioux, at para. 65).

18There are cases where direct evidence from the complainant about their state of mind at the time the touching occurred is insufficient or unavailable. This often arises in cases where the complainant does not recall the sexual activity at issue. In those situations, the Crown may meet its burden of establishing the complainant’s lack of subjective consent through circumstantial evidence (see Rioux, at paras. 56, 60, 73, 75; R. v. Kishayinew, 2020 SCC 34, [2020] 3 S.C.R. 502, at para. 1).

19Circumstantial evidence that is potentially relevant to determining subjective consent may include the emotional state of the complainant before and after the sexual act; the complainant’s attitude towards the accused; actions of the complainant that are inconsistent with consent; physical evidence inconsistent with consent; actions of the accused that may be inconsistent with consent; and the complainant’s beliefs and assumptions about how they would have acted in the situation (see Rioux, at para. 86).

20Where the Crown’s case is dependent on circumstantial evidence, the standard from R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, applies. When applied to whether there was a lack of consent, I must consider whether the circumstantial evidence, when viewed in the context of the whole of the evidence, establishes that the only reasonable inference is that the complainant did not consent to the sexual touching at issue (see Rioux, at paras. 73–75; Villaroman, at para. 41).

21The mens rea of sexual assault has two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to the complainant’s lack of consent (see Ewanchuk, at para. 42; Barton, at para. 87). Sexual assault is a crime of general intent. The Crown need only prove that the accused intended to touch the complainant to satisfy the basic mens rea requirement of the intention to touch (see Ewanchuk, at para. 41).

22For the purposes of determining the mens rea, and specifically for the purposes of the defence of honest but mistaken belief in communicated consent, “consent” means, “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” (Ewanchuk, at para. 49). Consent at the mens rea stage focuses on the mental state of the accused and whether the accused honestly believed the complainant communicated consent through their words and/or actions (J.A., at para. 47; Barton, at paras. 90–92).

23An accused may raise the defence of an honest but mistaken belief in communicated consent if the accused believed that the complainant communicated consent to engage in the sexual activity at issue. However, ss. 273.1(2) and 273.2 limit when the accused may rely on this defence. Importantly, an accused’s subjective belief that the complainant communicated consent cannot be anchored in a mistake of law. For example, an accused cannot have a subjective belief in consent that is based on the complainant’s silence, nor can the accused claim that they misinterpreted the complainant’s “no” as meaning “yes” (see Barton, paras. 95–96; J.A., para. 24).

24In this case, the parties agree that the defence of an honest but mistaken belief in communicated consent is not a live issue.

(b) Assessment of exculpatory evidence

25D.H. testified and provided exculpatory evidence. As a result, I must follow the principles established in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757–58, as elaborated on in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 9–17. These principles apply whenever credibility issues are at play between inculpatory and exculpatory evidence, whether called by the accused or by the Crown (see R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 60; R. v. Smith, 2020 ONCA 782, 69 C.R. (7th) 126, para. 12).

26When applied to this case, the W.(D.) principles are as follows:

First, if I believe D.H.’s evidence, then I must acquit.
Second, if I do not know whether to believe D.H.’s evidence or the complainant’s evidence, then I must acquit.
Third, if I do not believe D.H.’s evidence, but I am left with a reasonable doubt by it, then I must acquit.
Fourth, even if I reject all of D.H.’s evidence, I must go on to consider whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of D.H.’s guilt.

27In relation to the offence of sexual assault, the W.(D.) instruction requires modification to reflect the fact that consent, as an element of the actus reus, is not determined with reference to whether D.H. believed that the complainant consented (see R. v. R.S., 2025 ONSC 2025, at para. 295).

28The W.(D.) principles are a bedrock of our criminal justice system. Among other things, the principles ensure that the trier of fact only convicts the accused if the Crown has proven all the essential elements of the alleged crime beyond a reasonable doubt. In determining whether the Crown has satisfied its burden, the trier of fact does not decide a case by simply choosing between rival versions of the events at issue. Rather, a trier of fact must acquit an accused if they have a reasonable doubt regarding any of the essential elements of the offence, even if the trier does not believe the accused’s version of events (R. v. MacKenzie, 2020 ONCA 646, 395 C.C.C. (3d) 421, at para. 22).

29In assessing the exculpatory evidence, I must not consider it in isolation. Rather, I must consider D.H.’s testimony within the context of all the evidence, including the testimony of the complainant (see R. v. Hull, 2006 CanLII 26572 (Ont. C.A.), at paras. 5–6).

III. Framing the Central Issues

30Based solely on the complainant’s testimony, there are five separate allegations of sexual activity that occurred when the complainant was sleeping:

(a) D.H. placed his penis on the complainant’s face;

(b) D.H. tied up the complainant;

(d) D.H. removed the complainant’s shirt and bra; and

(e) D.H. pulled down the complainant’s pants and underwear.

31In closing submissions, Mr. Pearl made two concessions.

32First, the Crown conceded that “it would be difficult” for the Crown to meet its burden with respect to the first two allegations.

33Second, the Crown conceded, correctly in my view, that the evidence does not support a finding that the complainant’s consumption of alcohol, prescription drugs and possibly a THC edible would have rendered the complainant incapable of providing consent. The Crown’s concession is consistent with the following evidence:

(a) the CCTV footage (Exhibits 3A, 3C, 3D, 5, 6, 7, 8, 10). The CCTV footage shows the complainant speaking and walking without difficulty. The last video recording, prior to the alleged sexual assault, shows the complainant walking steadily and conversing with D.H. at approximately 3:45 a.m.;

(b) the complainant’s evidence that she was drunk, but not “hammered”;

(d) the expert toxicology evidence that will be described in greater detail below.

34The first two elements of sexual assault are not at issue in this case. There is no doubt that intentional touching of a sexual nature occurred between D.H. and the complainant on March 8, 2024. The central issue is whether the complainant consented to any sexual activity.

35The Crown’s theory, which is consistent with the complainant’s evidence, is that all the sexual activity occurred when the complainant was in a deep sleep. If I were to accept the complainant’s evidence, then s. 273.1(2)(a.1) of the Criminal Code would apply. If the complainant was in a deep sleep during the sexual activity, then she could not provide valid consent (see R. v. S.W., 2024 ONCA 173, 171 O.R. (3d) 269, at para. 42; J.A., at paras. 3, 66).

36On the other hand, the defence’s theory of the case makes consent a live issue. D.H.’s evidence describes sexual activity that occurred when the complainant was awake. The complainant does not recall this sexual activity and testified that she would not have given consent. The Crown’s concession means that the complainant was capable and could have provided consent, but that does not mean that the complainant subjectively consented to the sexual activity that she cannot recall happening.

37The Crown’s concession does not make the complainant’s level of intoxication irrelevant. The complainant’s level of intoxication is still important to evaluating the complainant’s evidence that: (1) she has no memory of any sexual touching occurring when she was awake; (2) that she would not have consented to any sexual activity with the complainant; and (3) the sexual activity occurred while she was asleep.

38Given the main issues on this trial, I have organized my decision into two sections. First, I will make findings of fact with respect to the complainant’s level of intoxication. Second, I will review the evidence in relation to each of the elements of sexual assault with a focus on the issue of consent. As required, I will evaluate D.H.’s evidence and the complainant’s evidence in the context of the whole of the evidence.

IV. Analysis and Findings

(a) The complainant’s level of intoxication

39There are three factual issues that I must decide before evaluating the complainant’s level of intoxication.

40First, whether the complainant ate a THC edible cookie. Second, whether the complainant took Trazodone before going to sleep. Third, whether the complainant was in a near unrousable state of deep sleep, such that the sexual touching could have occurred without her waking up.

41The first factual issue can be resolved quickly. I find that the following evidence clearly establishes that the complainant ate a THC edible cookie late in the evening on March 7or in the early morning hours of March 8:

(a) the Crown takes the position that it was likely that the complainant ate the edible;

(b) the complainant testified that she had planned to smoke a joint that evening;

(c) on Exhibit 10, D.H. can be heard on a call saying something to the effect of “who delivers weed” at 11:05 p.m. D.H. was seeking marijuana at that time;

(d) in cross-examination, the complainant agreed that she may have eaten a THC edible cookie, but she could not recall if she did or not;

(e) on Exhibit 3A, at approximately 1:58 a.m., D.H. can be heard telling the complainant that, “[he] can make no representations or about what the fuck was in that, but I can tell you that I have had cookies and some done nothing and others have done things”. The complainant can be heard laughing to this statement and saying “ok”;

(f) the complainant’s blood and urine tested positive for THC. The THC levels in the complainant’s blood were high;

(g) both the Crown’s toxicology expert, Dr. Mayers, and the defence’s toxicology expert, Dr. Sivilotti, testified that the THC concentration in the complainant’s blood was consistent with eating an edible; and

(h) the complainant attended at the hospital on the morning of March 8. She met with a Domestic Assault and Sexual Assault (“DASA”) nurse. The nurse testified and confirmed that the complainant told her that she was experiencing several symptoms that morning before being examined. In cross-examination, the complainant testified that she recalled suffering from those symptoms on the morning of March 8. Both Dr. Mayers and Dr. Sivilotti testified that some or all of the symptoms were not consistent with the self-reported alcohol consumption taken by the complainant. Dr. Sivilotti testified that the symptoms were consistent with the complainant having consumed a cannabis edible.

42The second factual issue is more difficult. The complainant testified that she takes Trazodone every night because it helps her to sleep. The complainant testified that she “would’ve” taken her Trazodone on the night of the alleged offence before going to sleep, but she did not recall when she took the medication. The complainant went on to testify that she is not supposed to take alcohol with Trazodone because it increases the effects of Trazadone. In the past, the combination of alcohol and Trazadone has made her feel exhausted.

43In cross-examination, the complainant was shown an email exchange that she had with the investigating officer, Detective Constable Mole, on March 12, 2024. In that email, the complainant told the investigating officer that she did not recall taking Trazodone that evening. The complainant did not adopt this position at trial. When challenged on taking her Trazodone, the complainant recalled that she brought a pill bottle with her to D.H.’s office. The bottle contained the Trazodone and two other medications that she planned on taking the next morning. The complainant testified that she “must have” checked the container on March 8, but she did not remember what was in the bottle.

44In cross-examination, the complainant admitted that she told the police that she had taken Trazodone. She testified that she told the police that she took her Trazodone because it was her routine to do so; however, she acknowledged in cross-examination that she could not definitively recall whether she took the Trazodone.

45Trazodone was found in the complainant’s blood. However, neither Dr. Mayers nor Dr. Sivilotti could determine precisely when the complainant would have taken her Trazodone.

46Dr. Mayers concluded that it was not likely that the Trazodone was taken more than 24 hours after the blood sample was taken. Dr. Sivilotti testified that the Trazodone levels in the complainant’s blood were “fairly small” and consistent with a therapeutic dose of Trazodone having been taken between 24 or 36 hours prior.

47Based on the totality of the evidence, I find that the complainant did take Trazodone sometime before she went to sleep. I arrive at this conclusion because the complainant normally took her medication before going to sleep and because the expert evidence cannot rule out the possibility that the complainant took the medication before going to sleep in the early morning hours of March 8, 2024.

48I now turn to the third factual issue. What impact did the alcohol, Trazodone and THC edible cookie have on the complainant’s level of intoxication?

49In addressing this issue, I am mindful that the Crown has conceded that the expert evidence does not establish that the complainant was incapacitated.

50In answering this question, I start by evaluating the alcohol ingested by the complainant. As detailed above, the complainant believes that she drank one bottle of wine and that it was possible that she shared between 2–3 bottles of red wine with D.H.. D.H. testified that he and the complainant shared three bottles of red wine. The complainant’s blood samples, which were taken at noon on March 8, were negative for ethanol, though her urine contained 10mg/100mL of ethanol.

51In cross-examination, Dr. Mayers was asked what the blood alcohol level would be of a person who stopped drinking at 5:00 a.m. and whose blood was taken at 12:00 p.m. and revealed no alcohol. Dr. Mayers testified that, at 5:00 a.m., the hypothetical person could have had a blood alcohol concentration of anywhere between 0 to over 100 milligrams. Dr. Mayers testified that he would not expect this blood alcohol concentration to have an impact on a person’s memory. Typically, memory loss is more likely to occur with the rapid consumption of alcohol.

52The same hypothetical was put to Dr. Sivilotti. He testified that at 5:00 a.m., the blood alcohol concentration would be between 105 to 140 milligrams, but not higher than 140 milligrams. At 4:00 a.m., the blood alcohol concentration would have been between 120 to 160 milligrams, but not higher than 160 milligrams. Dr. Sivilotti testified that, at 140 milligrams, common effects would include being in a disinhibited gregarious state and an individual would begin to feel the sedation effects of alcohol. At 140 milligrams, a person with no alcohol tolerance would not be rendered incapable. Dr. Sivilotti explained that a blood alcohol level of over 200 milligrams would be required to render a alcohol naive person incapable.

53In cross-examination, Dr. Sivilotti suggested that the peak concentration of a 140lb person who ingests a 750ml bottle of 15 percent wine over 2–3 hours would be around 200 milligrams, but not higher. Additionally, he testified that the combination of alcohol, Trazodone and THC would not have been enough to cause sedation to the point of unresponsiveness. However, Dr. Sivilotti agreed with Mr. Pearl’s suggestion that the combination of drugs, along with being up for several hours, could cause a person to be in a “deep sleep”, such that they could be “gently touched” and not wake up.

54Dr. Sivilotti went on to testify that a person with a sufficiently high dose of a drug that approaches an anesthetic will cause amnesia. Dr. Sivilotti testified that it was highly unlikely that someone who had no signs of impairment would have had enough alcohol to cause amnesia. On the other hand, Dr. Sivilotti testified that the consumption of a THC edible cookie could cause amnesia.

55In considering the whole of the record, I find that the combination of intoxicants taken would not have caused the complainant to be in an unrousable state such that some of the sexual touching alleged could have occurred without her waking up. I arrive at this conclusion for four reasons.

56First, Dr. Sivilotti testified that the combination of alcohol, Trazodone and the THC edible cookie was unlikely to cause the complainant to be sedated to the point of being unconscious.

57Second, the highest estimate of the complainant’s blood alcohol concentration was 200 milligrams. This estimate was based on the premise that the alcohol was consumed over 2–3 hours; however, this was not the timeframe established by the evidence. The complainant’s evidence and D.H.’s evidence confirmed that the two began drinking shortly after the complainant arrived at D.H.’s office and continued to drink through the night. The complainant and D.H. were awake at least until 3:45 a.m. Based on the complainant’s evidence and D.H.’s evidence, the two would have been drinking for nearly 7.5 hours. As such, I find that the complainant’s blood alcohol concentration was not as high as 200mg/100mL at the time she went to sleep, sometime after 3:45 a.m.

58Third, even if I accept the 200 milligrams estimate, Dr. Sivilotti testified that a blood alcohol concentration that approached 200 milligrams would be required to achieve incapacity for someone who is alcohol naïve. While the complainant was not a habitual user of alcohol, her evidence established that she was not alcohol naïve.

59Fourth, Dr. Sivilotti agreed that it was possible that the combination of drugs, along with the being up for several hours, could cause a person to be in a “deep sleep”, such that they could be “gently touched” and not wake up. However, some of the touching alleged by the complainant is not gentle touching.

60Based on the above, I find that the complainant was likely in a deep sleep, but I find that it is unlikely that she was in such a deep sleep that some of the sexual touching alleged could have occurred without her waking. Specifically, I find that it is highly unlikely that the complainant could have been tied up in the manner alleged without her waking up. It is implausible that the complainant could have been “hogtied” without her waking up. That level of physical contact is not “gentle touching”. Similarly, I find it highly unlikely that D.H. could have pulled up the complainant’s shirt and bra to expose her breasts or digitally penetrated the complainant without waking her up. Finally, I find it highly unlikely that D.H. could have taken down the complainant’s pants and underwear to her ankles and manipulated her body into the position alleged by the complainant without waking her.

(b) The first two elements of sexual assault: intentional touching and sexual purpose

61The first two elements can be addressed summarily. D.H. concedes that the Crown has met its onus in establishing that D.H. intentionally touched the complainant and that the touching was in a sexual manner. The complainant’s evidence and D.H.’s evidence confirm that there was intentional touching with a sexual purpose. Additionally, D.H.’s DNA was found on the complainant’s external and internal genitalia. This, too, confirms that sexual touching occurred.

(i) Summary of D.H.’s evidence

62D.H. testified that he and the complainant were second cousins once removed. Specifically, D.H.’s grandparents are the complainant’s great grandparents. He first met the complainant at a wedding in the mid-2000s. They next met in person at his house on December 29, 2023. On that occasion, the complainant’s brother reached out to D.H.’s wife to ask whether he could meet with D.H. to obtain financial advice.

63That night, D.H., his wife, his mother, the complainant and the complainant’s brother talked, had some drinks and caught up. The complainant’s brother stayed for one or two hours before leaving. D.H.’s wife and mother went to bed, but the complainant stayed longer. D.H. and the complainant spent the evening drinking and chatting. The complainant stayed the night at D.H.’s residence.

64After this evening, D.H. felt, “with a certain amount of trepidation”, that there was a sexual connection between himself and the complainant.

65D.H. and the complainant stayed in touch after the December meetup. They exchanged several messages before meeting at D.H.’s office on the evening of March 7 to have some drinks and talk. Originally, the plan was for the complainant to meet D.H. at his house. Those plans changed after D.H.’s wife said she was tired and did not want company at their house.

66D.H. was excited that the complainant was coming to his office to drink and spend the night. D.H. was open to the possibility of something sexual happening with the complainant that evening.

67The complainant arrived at D.H.’s office at 7:30 p.m. D.H. recalled opening a bottle of wine. D.H. testified that he and the complainant drank bottles of red wine that evening and that he had one or two shots of tequila at the beginning of the night.

68D.H. believed that he drank a bottle or a bottle and a half of wine over the course of the evening. During the night, D.H. and the complainant talked, watched some videos, played some Nintendo games and went back and forth to the office building’s balcony to smoke cigarettes. Part of their discussions included sharing details of their sexual proclivities. D.H. denied that he told the complainant that he wanted to “fuck” and testified that he did not overtly solicit sex from the complainant. D.H. testified that both he and the complainant engaged in flirtatious behaviour throughout the night and leading up to what occurred on the couch.

69At approximately 4:45 a.m., the complainant and D.H. decided to go to sleep on the couch in the recreational room of D.H.’s office. The complainant told D.H. that the couch would not be good for her back and D.H. offered to give her a back massage. The complainant agreed. The complainant laid down on her stomach and D.H. straddled her. D.H. massaged the complainant’s back. At first, the massage was over her shirt and then moved to under her shirt. The complainant made noises of pleasure.

70D.H. then started massaging up and underneath the complainant’s bra line. The complainant shimmied her shirt and bra over her head and dropped them beside the couch. At this time, D.H. took off his shirt and unbuttoned his pants.

71The complainant asked D.H. to massage lower. D.H. started massaging the complainant’s sciatic region and her buttocks over her pants. D.H. then started massaging the complainant under her pant line. The complainant then popped up, undid her pants and shimmied them down a couple of inches. The entire massage took about 10–15 minutes.

72D.H. offered to massage the complainant’s feet and the complainant agreed. After the foot massage, D.H. lied beside the complainant and told her that he was good at giving orgasms. The complainant responded by smiling and leaned toward him. The two kissed passionately and began “making out”.

73D.H. then began rubbing the complainant’s breasts and moved his hand down her chest towards her vagina. He began rubbing the complainant’s clitoris. The complainant made sounds of pleasure and started thrusting her pelvis into his hand. The complainant started stroking D.H.’s penis. He did not believe that he inserted his finger into the complainant’s vagina. After a few minutes, the complainant stopped touching D.H. and began touching her vagina. D.H. stopped rubbing the complainant’s clitoris.

74The complainant then told D.H. that he lied about being good at giving orgasms and said, “this never happened”. After these comments, D.H. asked the complainant to call his phone as he could not find it. The complainant called D.H.’s phone. After the first call, D.H. went to the washroom and washed his hands. D.H. did not notice an odour from touching the complainant’s vaginal area. Upon his return, D.H. fell asleep on the couch.

75D.H. woke up at approximately 7:00 a.m. He observed the complainant naked from her stomach upwards. D.H. took three pictures of the complainant. The last picture was taken from her feet. After the last picture, the complainant woke up and asked him if he liked her feet.

76D.H. confirmed that he did not have the complainant’s consent to take pictures of her while she was in a state of undress.

77The complainant put her shirt and bra back on and came toward D.H.. She was, understandably, angry. She asked whether he took a picture of her, and he denied taking the picture. He then quickly began apologizing to deescalate the situation. The complainant attempted to take D.H.’s phone, and he locked the phone. Ultimately, D.H. gave the complainant the phone and she ran through the office with it.

78The complainant asked to see the pictures and asked him to delete them; however, D.H. declined to unlock the phone. Eventually, the complainant pushed the phone into D.H.’s chest and told him that he had “fucked up”. Once he regained control of his phone, D.H. deleted the pictures and offered to show her his phone to prove that he had deleted them. D.H. believes he would have shown the complainant his phone’s photo album. The complainant glanced at the phone. D.H. conceded that he had pornographic pictures saved on his phone and it was possible that the complainant saw one of the pornographic pictures that included bondage.

79After showing her the phone, the complainant continued to be angry with D.H.. D.H. testified that he became concerned about some of the comments that the complainant was making. D.H. followed the complainant out of his office, into the hallway and then into the lobby of the building. During their heated discussion, D.H. asked the complainant whether he had misunderstood what occurred on the couch. The complainant did not directly respond to D.H.’s question, but she repeatedly mentioned that D.H. had taken pictures of her without her consent.

80D.H. denied engaging in any sexual activity with the complainant when she was asleep. Specifically, D.H. denied:

(a) placing his penis on the complainant’s face;

(b) penetrating the complainant’s vagina;

(d) undressing the complainant while she slept.

(ii) Evaluating D.H.’s evidence

81I start with general observations of D.H.’s evidence before turning to the Crown’s main challenge to his testimony.

82D.H. had a good memory of the events. His evidence of what occurred prior to the sexual activity on the couch and what occurred after the complainant woke up was corroborated, in part, by the complainant’s evidence and by the independent evidence heard at trial. D.H.’s evidence was internally consistent and was, subject to one caveat discussed below, unchallenged in cross-examination.

83With respect to corroboration, the CCTV evidence and the complainant’s evidence confirmed aspects of D.H.’s evidence. For example, some of the conduct D.H. described as flirtatious behaviour is corroborated by the following evidence:

(a) Exhibit 7 @ 1:58 a.m. depicts D.H.’s whistle and the complainant’s giggle.

(b) Exhibit 3A @ 2:17 a.m. depicts D.H.’s arm around the complainant.

84To be clear, the evidence of flirtatious behaviour does not play any role in determining whether the complainant consented to the sexual touching described by D.H.. Rather, I rely on this evidence to demonstrate that D.H.’s recollection of the events before the sexual activity is consistent with other evidence heard at trial.

85D.H.’s evidence that the complainant’s anger was primarily focused on the pictures that he had taken of her is also consistent with the CCTV footage. For example, in Exhibit 3D the complainant and D.H. have an exchange that is clearly related to the pictures. This confrontation occurs at approximately 7:18 a.m., before the complainant leaves the office building.

86On the video, D.H. is asking the complainant whether he misunderstood what happened. Incredibly, after taking pictures of the complainant while she was in a state of undress and without her consent, D.H. had the gall to ask, “at what point between then and now [did] this shit [go] sideways”. The complainant responds, “You took a picture of my body”. The complainant later tells D.H. that “you violated me”. When D.H. asks how he violated her she responded, “with pictures”. Near the end of the exhibit, the complainant says, “You’re acting like a fucking dumbass right now. Instead of manning up and saying I did something that violated your fucking privacy …”.

87What is clear from Exhibit 3D is that the complainant’s anger is focused on the pictures. The complainant’s anger is completely understandable. It is surprising, however, that she does not make any comments about how D.H. violated her by touching her while she was asleep. In cross-examination, the complainant testified that she did confront D.H. on touching her while she was asleep but this portion of the conversation occurred while the two were in the office. This discussion was not captured on the video recordings.

88I do not accept the complainant’s evidence on this point. It is inconsistent with D.H.’s evidence, and his memory of the events is clearer than the complainant’s memory of events. Additionally, it is difficult to believe that during the portion of the confrontation that was videotaped, the complainant would not return to issue of being sexually assaulted while she slept. To be clear, I am not suggesting that there is a hierarchy of violations of personal autonomy that would mean that the complainant should have put more emphasis on the sexual assault over D.H.’s voyeurism. Rather, I am skeptical that the complainant, who was confronting D.H. on his behaviour, would only raise the issue of the photographs in the context of a discussion about what D.H. had done to violate her dignity.

89D.H.’s evidence with respect to getting his phone back is corroborated by Exhibits 3C and 14. Those exhibits confirm that D.H. retrieved his phone from the complainant after she ran with it into an adjoining office space. Additionally, D.H.’s evidence that the complainant called his phone is corroborated by the complainant’s phone records which demonstrate that two calls were made from the complainant’s phone to D.H.’s phone at 5:11 a.m. and 5:19 a.m.

90In cross-examination, D.H. answered questions in a responsive way and did not exaggerate his evidence to assist in his defence. He often conceded suggestions put to him by the Crown, even when it was supportive of the complainant’s evidence or cast him in a negative light.

91For example, D.H. agreed with the Crown’s suggestion that his March 7 text message exchange with the complainant was confusing. Specifically, D.H. agreed that the complainant may have been confused as to whether they were going to stay at his office for the night or return to D.H.’s residence. At first blush, this concession does not appear important. However, the complainant was vigorously cross-examined on these text messages. During the cross-examination, Ms. Makepeace suggested that the March 7 text messages were not confusing and that the complainant was pretending to be confused to diminish her interest in spending a night drinking with D.H.. By the time he testified, it would have been clear to D.H. that his counsel was seeking to challenge the credibility of the complainant’s testimony that she was confused by the text message exchange. Despite knowing this, D.H. gave evidence that was supportive of the complainant’s evidence.

92D.H. also admitted to things that did not reflect well on his character. Two examples help demonstrate this aspect of his cross-examination.

93First, D.H. agreed that he was attracted to the complainant, his distant relative. Second, D.H. agreed with the Crown’s suggestion that he was not disheartened when his wife asked him to meet the complainant at his office. D.H. admitted that being away from his wife and young child would provide a better opportunity for something to happen between himself and the complainant. This admission was consistent with his one-sided sexual interest in the complainant that began in December 2023. These admissions could not have been easy to make as they do not present D.H. in a positive light.

94Mr. Pearl’s primary challenge to D.H.’s evidence is rooted in his inconsistent decisions about consent. According to D.H., he exercised a cautious approach to ensuring that the complainant was a willing participant in sexual activity; however, he later took non-consensual picture of the complainant in a state of undress while she was sleeping. Mr. Pearl argues that the inconsistency in D.H.’s approaches to consent demonstrate that he concocted his evidence regarding what occurred on the couch that evening. In cross-examination, the following exchange occurred:

Q. Okay, and, again, your evidence was you would never violate her integrity, and you certainly wouldn’t want to commit a crime; right?

A. Both of those are true.

Q. Are you aware that taking naked pictures of someone is a crime?

A. I, I am now.

Q. Okay, you weren’t at the time?

A. It didn't enter my mind.

Q. Okay. So, again, it, it doesn’t — I’m, I’m putting to you this flies in the face of everything you’ve told us, you’re this person who’s cautious, you’re the person who wouldn’t violate integrity, wouldn’t commit a crime, certainly wouldn’t do anything sexual without that person’s consent. This completely flies in the face of that, doesn’t it?

A. It does.

Q. Okay.

A. If I might qualify my response?

Q. Please.

A. In that moment, I had not perceived the pictures in the same way that I would have progressing with touching. Wrongly so now, obviously, with the benefit of hindsight, I understand very clearly now that we are talking about a criminal, criminal act. In the moment, it was opportunistic, selfish, and just wrong.

Q. You certainly didn’t admit to it right away; right?

A. Not right away, no.

95This evidence was troubling. I agree with D.H. that, in the moment, he decided to be “opportunistic” and “selfish”. I do not believe his evidence that he did not know that it was a criminal offence to take a picture of a person in a state of undress without that person’s consent. This explanation defies common sense. It would be obvious to any person, trained in law or otherwise, that such a significant invasion of privacy was illegal. I find that D.H. took the pictures because he believed the complainant was asleep and that he would get away with it.

96While D.H.’s evidence on this point causes me concern, I do not find that it requires me to reject his explanation for what occurred on the couch prior to himself and the complainant falling asleep. I arrive at this conclusion for three reasons.

97First, there is no doubt that sexual activity occurred. Second, as I will explain further, I do not believe that the complainant’s evidence establishes, beyond a reasonable doubt, that, in a state of intoxication, she would not have consented to any sexual activity. Third, as noted above, I have serious doubts with respect to the complainant’s evidence about what sexual activity occurred while she was asleep. As I will explain below, some of the complainant’s allegations are deductions of what she believes occurred. While some of her deductions are reasonable, others are not.

98I turn now to the evidence that is inconsistent with D.H.’s evidence. Specifically, the DNA evidence.

99Forensic analysis revealed that DNA from two people was found on the complainant’s external genitalia. D.H. cannot be excluded as the contributor to that mixed profile, which contained semen. Dr. Morrow testified that it was not possible to determine whether the semen originated from D.H. or the unknown person. D.H.’s DNA was also found inside the complainant’s vagina.

100D.H. testified that he did not believe he penetrated the complainant’s vagina. This is inconsistent with Dr. Mayers’s evidence that D.H.’s DNA was found inside the complainant’s vagina. I note that D.H. could have explained the presence of his DNA in the complainant’s vagina by admitting that he digitally penetrated the complainant. The fact that he did not give this evidence demonstrates that he was not trying to concoct a story that fit the other evidence heard at trial.

101For the reasons that follow, the DNA evidence does not cause me to doubt the veracity of D.H.’s evidence.

102D.H. testified that he touched the complainant’s external genitalia, which could explain the presence of his DNA on her external genitalia. Further, he testified that the act of mutual masturbation ended when the complainant began to touch her vagina. As she had previously been touching his erect penis, it is possible that she could have transferred pre-ejaculate fluid or other DNA material onto her external genitalia. In cross-examination, Dr. Morrow confirmed that pre-ejaculate fluid contains sperm and that it was possible that D.H.’s DNA could have been transferred to the complainant’s hand and then onto to her external genitalia when she began to touch herself.

103With respect to the internal genitalia, there is a reasonable inference available on the evidence that points away from D.H. penetrating the complainant. Specifically, it is possible that the complainant transferred D.H.’s DNA to inside her vagina. I arrive at this inference based on the following evidence:

(a) D.H. testified that after rubbing his penis, the complainant began touching her vagina.

(b) In cross-examination, Dr. Morrow agreed that it was possible that D.H.’s DNA could be deposited inside of the complainant’s vagina if she digitally penetrated herself.

(c) In cross-examination, the DASA nurse testified as to how she conducts an internal vaginal swab. The nurse begins the swab at the beginning of the vaginal wall until she reaches the cervix. Given this evidence, it is possible that D.H.’s DNA could have been located on the complainant’s vaginal wall. This means that an act of minimal penetration could explain the deposit of foreign DNA. This is consistent with an inference that the complainant transferred D.H.’s DNA inside her vagina when she began to manipulate herself and possibly digitally penetrate herself.

104I now turn to the main inconsistencies between D.H.’s evidence and the complainant’s evidence.

(iii) The complainant’s evidence

105The complainant testified that she arrived at D.H.’s office building at approximately 7:30 p.m. Almost immediately after the complainant arrived, the two began drinking.

106The complainant testified that, for most of the night, they drank and talked in D.H.’s office, but that they left the office several times when D.H. wanted to smoke or when they went to the washroom. When leaving for a cigarette, the two would leave D.H.’s office and go to the balcony of the office building. The complainant had trouble recalling much of the night, but she did recall moving into the recreational room of office at some point. She specifically recalled placing her hand into a fish tank and being bitten by a fish.

107The complainant testified that during one of their conversations that night, D.H. asked her if she “want[ed] to fuck”. At the time, the complainant thought that D.H. was joking.

108The complainant testified that nothing sexual happened between her and D.H. that evening. The complainant recalled that, at some point, D.H. placed his hands on her back and she said “No”. Spontaneously, during cross-examination, the complainant recalled D.H. placing his hand on her waist and that she said “No”. This was a new memory.

109At some point in the early morning hours of March 8, the complainant and D.H. went to sleep on the large couch in the recreational area of the office. At that time, the complainant was “drunk”. The complainant recalled falling asleep fully clothed.

110In her examination-in-chief, the complainant testified that she woke up briefly and saw the complainant’s penis on her cheek. At that time, she was still groggy and did not know what was happening. The complainant testified that she did not see the complainant in her field of vision, and she did not believe that what she saw was real. She then fell back asleep.

111The complainant next woke up to a bright light in her eyes. She saw D.H. by her feet. The complainant’s knees were bent upwards, and her pants and underwear were down by her ankles. The complainant’s shirt and bra were also pulled up and her breasts were exposed. The complainant observed D.H. “recording” her vagina. The bright light was caused by D.H.’s cell phone flash.

112The complainant testified that D.H. saw her awake and he put his cell phone down into the couch cushions and acted like he did not know where his cell phone was. The complainant then put her clothes back on and took D.H.’s phone from the couch. The complainant looked at the phone and saw a picture of herself, fully clothed, with her feet tied to her hands. The complainant only observed the picture for a few seconds before D.H. took the phone back. The complainant identified herself in the picture by observing the feet of the person photographed. Specifically, the complainant believed that the person in the picture had a hammer toe. The complainant testified that she, too, has a hammer toe.

113The complainant testified that D.H. then took the phone away from her by putting his bodyweight on her and pushing her off the couch. D.H. obtained the phone, and she never got it back, despite her attempts to get the phone. D.H. told the complainant that the pictures were just for him, and he deleted them off his phone.

114When she was struggling to get the phone from D.H., she could smell the odour of bacterial vaginosis on D.H.’s hands.

115The complainant testified that she did not consent to any sexual activity happening with D.H. as she was “unconscious”. In addition, the complainant testified that there was nothing prior to her going to sleep that would have indicated her consent to any sexual activity.

116In cross-examination, the complainant testified that she had no recollection of any sexual activity happening when she was awake and provided three explanations for why she would not have consented to any sexual activity with D.H.. First, the complainant and D.H. were related. Second, she was not physically attracted to D.H.. Third, she had bacterial vaginosis, which meant that she was not taking her clothes off for anyone.

117With the greatest of respect to the complainant, there were several problems with her evidence. The problems with the complainant’s evidence relate to three areas:

(1) questions about the reliability of her evidence;

(2) questions about her evidence on the core alleged sexual activity; and

(3) her evidence that she would not have consented to the sexual activity.

(iv) Reliability of the complainant’s evidence at trial

118The complainant does not recall significant portions of the night and morning at issue. In cross-examination, she acknowledged that she does not have a complete memory with respect to the latter portion of March 7into the early morning hours of March 8. For example, the complainant could not recall wearing D.H.’s jacket when they went out to the balcony of the office building so that D.H. could have a cigarette. The complainant did not recall D.H. making a phone call at 11:14 p.m. to procure marijuana.

119The complainant went on to testify that her memory begins to become more vivid after she woke up to the flash from D.H.’s phone. The complainant testified that she has had memory problems in the past after being involved in a serious car accident which led to her being diagnosed with post-concussive syndrome, a stress disorder that has impacted her memory.

120The complainant made notes of what she recalled happening with D.H.. In those notes, which were made within a week of March 8, the complainant stated, “what the fuck did we do”. When asked about this notation in her notes, the complainant testified that she, “[didn’t] remember the night” and her notation reflected the fact that she could not recall much of the night.

121In addition to her general inability to recall what occurred for much of the night, the complainant’s testimony was inconsistent with her statement to the police on March 8, 2024. In some cases, the inconsistencies were significant and not adequately explained. When explanations were given, some of them caused me to doubt whether the complainant’s evidence reflected her actual memories. Additionally, the complainant had lost memories that she once had, and she had no explanation for why she had lost these memories. As I will explain, this causes me significant concerns with respect to the reliability of her evidence.

122I start with two significant examples of inconsistencies between her police statement and her testimony at trial.

123In her examination-in-chief, the complainant testified that she went to sleep on the couch because she was exhausted. This explanation could support a finding that the complainant was so intoxicated that she was incapacitated.

124On the other hand, in her police statement, she said that she went to sleep because D.H. was getting a “little handsy”. When confronted with this inconsistency, the complainant explained, “there’s certain facts that happened that have re-occurred in my mind over and over again, and trauma has kind of affected how my brain has perceived the entire night”. Given this answer, I am left questioning whether the complainant’s testimony is a genuine recollection of what occurred or whether trauma affected how she now recalls what happened.

125Another inconsistency relates to when the complainant woke up after seeing a flash of light. In her examination-in-chief, the complainant testified that when she woke up, she was on her back, and her knees were bent upwards, and her feet were flat on the couch. She then observed D.H. holding his phone between her legs. In cross-examination, she testified that she had a vivid memory of this incident.

126The complainant’s testimony was very different from her police statement. In her police statement, she told the police that she woke up on her side and her hands were behind her back and that she was twisted in the blankets. When confronted with this inconsistency at trial, the complainant testified that she did not recall that version of the event.

127This is not an inconsistency on a peripheral issue. It goes directly to the moment the complainant woke up and observed D.H. recording her vagina. The complainant’s evidence to the police on this crucial moment is entirely different from her memory at trial. No adequate explanation was provided for this inconsistency. To be clear, I do not believe that the complainant was lying at trial. I find that she genuinely believes that she woke up as she explained during her testimony. The problem is that given the significant inconsistency with her March 8 statement to the police, I cannot ascertain whether her memory at trial is accurate. Again, this causes me significant concerns with respect to the reliability of her evidence.

128There are a few examples of memories that the complainant has but no longer recalls. Two of the more significant examples of this relate to kissing D.H. and being given a back massage when she laid on the couch.

129On March 12, 2024, the complainant emailed D/C Mole. In that email, the complainant told the officer, “I remember [D.H.] kissing me … thinking it was horrible and his hands on me I remember that. I remember saying no and him listening”. Later in the email, she told D/C Mole that, “[D.H.] rubbed my back when I laid on the couch”.

130At trial, the complainant could not recall kissing D.H.. The complainant could not offer any explanation for why she could no longer recall the kissing. Of course, the March 12, 2024, email is a prior inconsistent statement. The email is not evidence that kissing occurred. That said, it is troubling that the complainant could not offer any explanation for why she had this memory 4 days after the incident but could not recall it at trial.

131With respect to having her back rubbed, the complainant recalled a sensation of D.H. rubbing her back, but she has no memory of laying down for a massage. Again, the email is a prior inconsistent statement, and it is not evidence that D.H. gave her a back massage when she laid down on the couch. Again, it is troubling that the complainant could not proffer an explanation for why she had this memory 4 days after the incident but could not recall it at trial.

(v) The complainant’s evidence of sexual activity that occurred while she was sleeping

132I have four concerns with respect to the complainant’s evidence about the sexual activity alleged to have occurred while she was asleep.

133To begin, I have already found that some of the complainant’s evidence on what occurred while she was asleep is not plausible. Specifically, given the complainant’s level of intoxication, I find that it is highly unlikely that D.H. could have done the following without the complainant waking up: (a) tied the complainant up; (b) digitally penetrated the complainant; (c) lift the complainant’s shirt and bra over her breasts; and (d) manipulated the complainant’s knees into a bending position and lower her pants and underwear. The type of touching required for these actions is not the type of gentle touching that Dr. Sivilotti explained could occur without the complainant waking up from a deep sleep. The expert evidence casts serious doubt on the reliability of many of the complainant’s core allegations.

134Second, putting aside the expert evidence, the complainant’s evidence that she was tied up while she was asleep is not believable. In her examination-in-chief, the complainant testified that when she retrieved D.H.’s phone from the couch, the phone was unlocked, and she saw herself tied up with the bottoms of her feet attached to her hands behind her back. The complainant could not tell how she was bound, and she did not observe anything in the room that could have been used to bind her feet to her hands.

135In cross-examination, it became clear that the complainant had deduced that she was the ‘hogtied’ individual in the image on D.H.’s phone. She admitted that she did not see the individual’s face in the photograph, which only depicted a woman’s hands and feet. The complainant also admitted that she could not recall whether the woman in the picture was wearing clothes or not. This admission was inconsistent with her evidence in her examination-in-chief where she stated that she believed she had clothes on in the picture. In cross-examination the complainant also admitted to having only looked at the picture for a split second. Despite having only reviewed the picture for a split second, the complainant was adamant that she was the woman depicted in the photograph because the feet had a high arch and a hammertoe. The complainant testified that she also has a high arch and hammertoe.

136At the end of the cross-examination of the complainant on this topic, she stated:

I believe them to be my feet and my hands. If you have other — anything that would suggest otherwise, I would love to see it, because then that may shed some light. But to me, that was my feet and my hands, especially with the way he reacted when I said, “Do you like my feet?”

137The complainant’s evidence is an example of how she resorts to deduction. I am not suggesting that the complainant was lying about seeing the picture, or that she does not genuinely believe that it was her in the picture that she saw. The complainant jumped to the conclusion that it must have been her in the photograph because she awoke to D.H. either recording her or taking a picture of her. This deduction, however, is not believable.

138The complainant saw a woman’s feet and hands for a split second. She did not see a face, nor can she recall if the woman in the photograph was clothed. It defies logic to suggest that she was able to ascertain that the feet shown in the picture had a high arch and a hammertoe. While the Crown does not argue that this specific allegation has been proven beyond a reasonable doubt, the complainant’s unwillingness to admit that it might not have been her in the photograph casts doubt on her credibility and reliability.

139Third, I have concerns with the complainant’s evidence that D.H. placed his penis on her face.

140My first concern relates to an inconsistency in her evidence. In her examination-in-chief, the complainant’s evidence was clear: when she first woke up, she saw D.H.’s penis on her face. In cross-examination, however, her evidence changed. The complainant explained that she first woke up to a feeling of something soft and cold on her cheek. The complainant then opened her eyes and saw a penis. Again, the complainant deduced that the soft and cold feeling that she had felt on her face was D.H.’s penis.

141In this scenario, the complainant’s deduction is not problematic. She felt something soft and cold that woke her up and then observed a penis. She naturally concluded that D.H. had touched her cheek with his penis while she was asleep. This makes sense. The concern that I have is that the complainant’s examination-in-chief did not make it clear that she had deduced that a penis was on her cheek. Rather, she asserted that she saw his penis on her cheek.

142Another issue with respect to this incident arises from the complainant’s admission that she did not believe, at the time, that what she was feeling and observing was real. Her feeling, in the moment, that the incident was not real is understandable given that she could not see D.H. in her field of vision, despite him being close enough to place his penis on her cheek. That said, the complainant’s admission that she did not believe that the incident really happened casts doubt on the reliability of her account of this incident.

143The expert evidence also casts doubt on whether this incident occurred. Dr. Sivilotti testified that THC consumed through an edible is unpredictable because of the way it is metabolized in the body and because the person eating the edible does not know how much cannabis they are ingesting. As a result, some of the pleasurable effects of THC that occur with inhalation can turn negative. Those negative effects include distortion of the perception of reality, interference with the ability to process executive tasks, interference with cognition, interference with mood and interference with memory. In cross-examination, Dr. Sivilotti agreed with Mr. Pearl’s suggestion that someone who consumes an edible can hallucinate, though hallucinations are not as common as with hallucinogenic drugs.

144While Dr. Mayers did not feel qualified to answer questions on the clinical effects of an edible, he did testify that there is anecdotal evidence that people who overdose on a THC edible can have psychiatric effects and that THC has some hallucinogenic properties.

145Given the expert evidence, it is certainly possible that the complainant was experiencing some of the negative impacts of THC when she felt something on her face, woke up and saw D.H.’s penis without seeing D.H.. Based on the totality of the evidence, I have serious concerns about the reliability of the complainant’s evidence with respect to this allegation. While I do not believe the complainant is making up the allegation, I am not convinced, beyond a reasonable doubt, that it occurred. This memory could very well have been a hallucination caused by the THC edible cookie. The THC edible cookie may also explain why the complainant cannot recall a significant portion of the night, including any sexual activity that occurred while she was awake.

(vi) The complainant’s evidence that she would not have consented to the sexual activity

146In evaluating the complainant’s evidence on consent, I am cognizant of the fact that consent is evaluated based entirely on the complainant’s subjective view. As noted above, the complainant provided three reasons for why she would not have consented to sexual activity with D.H.: they were related, she did not find him attractive, and she was suffering from bacterial vaginosis.

147I start with the third explanation. It is not clear to me that the complainant knew that she had bacterial vaginosis. She did not tell the police that she had bacterial vaginosis. When confronted with this omission, the complainant testified that she recalled seeing a notation in the DASA report that indicated that she had bacterial vaginosis. The complainant then testified that she knew she had bacterial vaginosis before March 7 and was treating it at home with a can of boric acid.

148This omission is significant because the complainant told the police that she would not have consented to sexual activity with D.H. because she was not attracted to D.H., but she made no mention of having bacterial vaginosis. The DASA nurse testified that she did not recall the complainant telling her that she had bacterial vaginosis. Given how this evidence came out in cross-examination, I have doubts as to whether the complainant knew she had bacterial vaginosis on March 7.

149Despite these doubts, I accept the complainant’s evidence that she had at least three reasons for why she would not have engaged in sexual activity with D.H. This evidence makes sense in the context of the complainant making decisions in a completely sober state. The complainant, however, was not sober.

150As noted above, the complainant does not recall any sexual activity occurring before she went to sleep. The complainant’s lack of subjective consent regarding any sexual activity that occurred when she was awake is based entirely on her circumstantial evidence. This means that the Crown must establish that the only reasonable inference from the evidence is that the complainant would not have consented to any sexual activity while she was awake.

151On a review of the evidence as a whole, I am not convinced that this is the only inference available from the circumstantial evidence. Dr. Sivilotti testified that an effect of alcohol is that it can make someone more gregarious and less inhibited. Having drank a bottle of wine and eaten a THC edible cookie, it is certainly a reasonable possibility that the complainant consented to sexual activity with D.H. while she was awake.

152In arriving at this conclusion, I have considered the complainant’s evidence that even in a non-sober state, she would not have consented to any sexual activity with D.H. Given the problems with the complainant’s evidence, I do find that her evidence on this point establishes that the only reasonable inference is that the complainant did not consent to the sexual touching that occurred while she was awake.

V. Conclusion on the third element of sexual assault

153Based on the totality of the evidence, the complainant’s evidence does not establish, beyond a reasonable doubt, that any sexual activity occurred while she was asleep. I accept D.H.’s evidence that all sexual activity occurred while the complainant was awake.

154Except for taking pictures of the complainant, D.H.’s evidence describes a consensual sexual encounter between himself and the complainant. D.H.’s evidence describes an encounter where the complainant, through a combination of verbal and physical conduct, provided consent to sexual touching. The Crown concedes that the complainant could provide consent. The complainant’s evidence that she would not have consented to sexual activity does make me doubt D.H.’s evidence on what occurred on the couch on the morning of March 8, 2024. Based on D.H.’s evidence on the nature and timing of the sexual activity, which I accept, the Crown has not met its burden of establishing that the complainant did not consent to sexual activity with D.H..

155I find D.H. not guilty of sexual assault.

The Honourable Mr. Justice S. Mathai

Released: June 30, 2026

CITATION: R. v. D.H., 2026 ONSC 3830

NEWMARKET COURT FILE NO.: CR-24-91102358-0000

DATE: 2026-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

D.H.

REASONS FOR JUDGMENT

The Honourable Mr. Justice S. Mathai

Released: June 30, 2026

REASONS FOR JUDGMENT

I. Introduction

II. Governing Legal Principles

(a) Elements of sexual assault

(b) Assessment of exculpatory evidence

III. Framing the Central Issues

IV. Analysis and Findings

(a) The complainant’s level of intoxication

(b) The first two elements of sexual assault: intentional touching and sexual purpose

(c) The third element of sexual assault: did the complainant consent to the intentional sexual touching

(i) Summary of D.H.’s evidence

(ii) Evaluating D.H.’s evidence

(iii) The complainant’s evidence

(iv) Reliability of the complainant’s evidence at trial

(v) The complainant’s evidence of sexual activity that occurred while she was sleeping

(vi) The complainant’s evidence that she would not have consented to the sexual activity

V. Conclusion on the third element of sexual assault

CITATION: R. v. D.H., 2026 ONSC 3830

SUPERIOR COURT OF JUSTICE

REASONS FOR JUDGMENT

REASONS FOR JUDGMENT

I. Introduction

II. Governing Legal Principles

(a) Elements of sexual assault

(b) Assessment of exculpatory evidence

III. Framing the Central Issues

IV. Analysis and Findings

(a) The complainant’s level of intoxication

(b) The first two elements of sexual assault: intentional touching and sexual purpose

(c) The third element of sexual assault: did the complainant consent to the intentional sexual touching

(i) Summary of D.H.’s evidence

(ii) Evaluating D.H.’s evidence

(iii) The complainant’s evidence

(iv) Reliability of the complainant’s evidence at trial

(v) The complainant’s evidence of sexual activity that occurred while she was sleeping

(vi) The complainant’s evidence that she would not have consented to the sexual activity

V. Conclusion on the third element of sexual assault

CITATION: R. v. D.H., 2026 ONSC 3830

SUPERIOR COURT OF JUSTICE

REASONS FOR JUDGMENT