Court File and Parties
CITATION: R. v. Martin, 2026 ONSC 998
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King v. Dylan Martin
BEFORE: Justice C.T. Hackland
COUNSEL: Ernesto Caceras, Counsel for the Crown
Amy Murchison, Counsel for the Accused, Dylan Martin
HEARD: December 8-10 and 15-19, 2025
Restriction on publication
Pursuant to Section 486.4 of the Criminal Code, there is an order in place directing that the identity of the complainants and any information that could disclose such identity not be published in any document or broadcast in any way. Further, these reasons have been edited to preserve the complainants’ anonymity in accordance with Section 486.4 of the Criminal Code.
Reasons for Judgement
Overview
1The accused is charged with two counts of sexual assault under Section 271 of the Criminal Code, R.S.C., 1985, c. C-46. One incident involved the complainant, J.L. on July 7-8, 2018 in Kingston, Ontario and the other complainant N.M., was involved in an interaction with the accused five years later, on July 14-15, 2023 in Ottawa, Ontario.
2A number of admissions were made under section 655 of the Criminal Code (exhibit 1) including that the accused made physical contact with the respective named complainants on the dates alleged and that the physical contact was sexual in nature. DNA from the accused was collected from swabs taken in the preparation of sexual assault evidence kits in relation to both J.L. and N.M.
3This matter proceeded before me as a judge alone trial. Each of the complainants testified and the accused also testified. Neither of the complainants know each other and neither knew the accused prior to the interactions forming the subject of these charges. In the case of J.L., she has no memory of interacting with the accused, as discussed below.
Count 1 - Alleged Assault on J.L. July 8-9, 2018
4J.L. was a 22-year-old University student residing in a house with two other renters, which was a few blocks from Kingston’s downtown area where there are various clubs and a busy night life. After getting off work at her summer employment at around 10:00 p.m., J.L. had a few drinks with her friend M.F. and they then walked to their favourite pub “the Brass”. Apart from initially being at this pub, J.L. has no further memory of that evening.
5J.L. next remembers waking up in her bed in her room the next day, late morning. She had no memory of anything after being at the Brass Pub. She was feeling uncomfortable and in particular had discomfort in her vaginal area. Her room was dishevelled, her underwear and other clothes she had been wearing were strewn on the floor, her wallet was gone, her cell phone showed she had received several calls that she had not heard or answered, and she spotted a used condom on her bathroom floor.
6J.L. gradually formed the belief that someone had sex with her in her room. She called her friend M.F. and learned that she had gone with M.F. from the Brass Pub to another nearby pub, “The Spot” where they spent some time. M.F. expressed to J.L. that she did not think that J.L. was intoxicated at The Spot. There are photographs in evidence showing J.L., M.F., and M.F.’s boyfriend dancing in an animated fashion at The Spot. J.L. was able to recover her wallet from The Spot the following day.
7J.L., accompanied by her mother, went to the Kingston Police the next day to report their concerns and then subsequently to the hospital where J.L. underwent a sexual assault examination including swabs in preparation of a “sexual assault kit”. J.L. was, and remains, of the view that someone likely slipped drugs into her drink, likely at the Brass Pub. The hospital took blood samples from J.L. and were unable to detect drugs in her system. As noted, J.L. has no recollection whatsoever of ever meeting the accused. She also does not recall being particularly intoxicated the previous evening and the feedback received from her friends was to the same effect. J.L. testified that during that period of time in her life, she would drink 2-3 times a week with friends and it would take 8-10 drinks “to get me fairly intoxicated”. She explained she had experienced some memory loss or blackouts on a few prior occasions, but never a complete blackout for a sustained period as occurred here.
8Turning now to the accused. After his arrest, he was interviewed at length by OPS officer Archibald in Ottawa on April 8, 2024. In that interview, the officer showed photos of J.L. and also of N.M. to the accused and the accused was insistent he had no idea who either of these women were. At trial, he had a detailed story about his interactions with each of them.
9As to J.L., the accused’s trial evidence was that he had met her outside The Spot nightclub at about closing time (around 2 a.m.). He said J.L., whom he had never met, had been drinking but was not intoxicated, in his opinion. They quickly decided to hook up and they headed out to her place which she told him was a few blocks away. At a point he believed was at or near their destination, he said J.L. pulled him down on top of her and they had sex and he slipped on a condom, which did not fit, so he took it off and had unprotected intercourse. He said he thought they were probably in her backyard at the time. When this was over, they walked a few more blocks to her house, where he got a glass of water from her and then he left without getting her name or exchanging contact information. The accused insisted he did not have sex with J.L. in her room. He never attempted to contact her at any time after that.
10It was the court’s strong impression that the accused was reconstructing and fabricating his story as he went along. The court is of the opinion that the accused was not credible or reliable in his testimony, even allowing for the fact that he was testifying about events occurring more than five years previously and he acknowledged having had many one night stands.
11In cross examination, defence counsel suggested to J.L., by way of hypothetical, that much of what the accused was saying about their sexual interactions that evening could have been true. J.L. responded that it was possible and “could have happened” and this could have been a one night stand. Then, in re-examination, J.L. walked back those comments somewhat saying she would not have gone into an alley way/backyard and had sex with someone she did not know, at least not without a condom. She said one night stands are not part of her character.
12This unusual and difficult fact situation requires the court to carefully assess whether the Crown can and has proven beyond a reasonable doubt that the accused sexually assaulted J.L. I accept J.L.’s evidence that she has no recollection of ever interacting with the accused or of speaking with anyone from the point at which she was at the Brass Pub until she awoke late morning the following day. There is no evidence the accused put drugs in J.L.’s drink and the blood tests do not support J.L.’s suspicions in that regard.
13Further, I do not understand it to be part of the Crown’s case that the accused drugged J.L. There was no expert medical opinion evidence to assist the court as to what conclusions, if any, to draw from J.L.’s memory loss or blackout. Given the DNA evidence, it must be concluded the accused had sex with J.L. when they were together that evening or early morning. There is possibly, even absent expert evidence, an inference to draw from her memory loss that she was incapacitated and therefore unable to consent, but on the other hand there is testimony from her friends, from the accused, and indeed J.L.’s own recollections that she was not heavily intoxicated that evening while at the two bars she visited. We have the accused’s testimony that J.L. was keen to have sex with him. J.L. clearly did lead the accused over to her residence, with the apparent intention of being intimate. What J.L. may have said to the accused about having sex is completely unknown.
14The Court’s attention was drawn to the recent Supreme Court decision in R. v. Rioux, 2025 SCC 34. In that case the court held that, while not determinative of incapacity, memory loss or blackout may be circumstantial evidence that the victim did not have the capacity to consent at the relevant time (para. 96). Even in cases of complete blackout, where there is an absence of direct evidence, a conviction can be sustained based on circumstantial evidence alone where the trier of fact is satisfied that guilt is the only available inference on the evidence (para. 97).
15After anxious consideration, the court has come to the conclusion that reasonable doubt exists about whether there was nonconsensual sex between the accused and J.L. on the evening or morning in question. Incapacity is not proven because of J.L.’s unexplained loss of memory. It is possible that J.L. led the accused to her house to engage in intimate sexual activity with him, with the capacity to have made that choice, or alternatively with the accused having a reasonable but mistaken belief that the accused was communicating her consent to have sex with him. On the evidence in this case J.L. can not speak to her intentions or state of mind. As a matter of circumstantial evidence, on the circumstances of this case, guilt is not the only available inference.
16In the circumstances, there will be a finding of not guilty on count 1.
Count 2 - Alleged Assault on N.M. on July 15, 2023
17N.M. was a 28-year-old graduate student from the U.S.A. training in a medical related discipline who came to Ottawa, Ontario to attend a conference in her area of study. She stayed at the Westin Hotel, which is near the Shaw Conference Centre and the Ottawa Byward Market area. When the conference ended (July 14) she attended the wrap up banquet (and had 2 drinks) and later walked over to the Byward Market area with two other persons from the conference and had one or two drinks at a bar with them. N.M. had in mind that she needed to get back to her hotel in time to get to the airport for about 7:00 am to catch her flight home.
18About 1:20 a.m., N.M. left the bar to walk back to the hotel by herself. At this point she testified that on a scale of one to ten, she would have rated her level of intoxication as a three. Shortly after leaving the bar she encountered the accused who engaged her in some friendly conversation and took her by the arm. They dropped into a nearby bar, had a drink, and some conversation. N.M. acknowledged in her evidence that she found the accused to be attractive and welcomed his attention. He offered to drive her back to the hotel and she accepted. They walked several blocks to where he had parked his car, stopping on the way to talk with a friend of the accused, who offered her a drink, which she declined. They got into the front seat of the accused’s car and briefly began to make out. The accused then got out and opened the back car door and they both willingly got into the back seat. To this point, N.M. testified she was acting consensually and enjoying her interactions with the accused.
19However, once in the back seat of the vehicle, N.M. testified she voiced several concerns to the accused. He had pulled down his own pants and her underwear and indicated he wanted to go down on her. She said you don’t have to do that and he desisted. She believed he was about to have intercourse with her and she attempted to cover her genital area with her two hands. He was laying on top of her at this point. She testified she did not wish to have intercourse because she was not on birth control and had no other protection. She was concerned about pregnancy and STDs and said she had heightened concerns about these risks as a medical person. She testified she told the accused three times that she did not want unprotected intercourse, but he pushed her hands away and proceeded to penetrate her vagina and ejaculated inside of her. The accused responded to her objection to having intercourse by saying she did not have to worry as he had had a vasectomy. N.M. gave her evidence about this unwanted intercourse, including her telling the accused three times that she was not consenting to unprotected intercourse, in a very credible fashion. I accept her evidence in this regard. I find that the accused’s actions in engaging in penetrative vaginal sex with N.M. in the back seat of his car, contrary to her expressed wishes, to constitute sexual assault. The accused is found guilty on Count 2 of the indictment.
20Importantly, the accused acknowledged in his testimony that he had in fact told N.M. he had a vasectomy. This must have been in the context of trying to persuade or reassure N.M. that she need not be concerned about unwanted pregnancy. He thought she responded “ok” and he then went ahead and penetrated her. In the court’s opinion, the accused’s acknowledgement that his vasectomy was discussed by him supports the testimony of N.M. that she raised her concern about not wanting unprotected intercourse.
21Having done so, as a matter of law it was incumbent on the accused to desist in any further attempts to have intercourse. Both parties say there was unprotected vaginal intercourse. Both parties acknowledge N.M. objected or at least raised concerns prior to the intercourse. Common sense would dictate that an intelligent person, perhaps particularly a medical person, would not consensually engage in unprotected sex with someone she had just met. The accused had been alerted to N.M.’s concerns and he was obligated to desist from attempting intercourse or to at least engage with N.M. to discuss the issue and clarify her wishes.
22In a similar case, R. v. Al-Akhali, 2025 ONCA 229, in which an accused had intercourse with a complainant whom he had just met, without any prior verbal discussion, Tulloch C.J.O., observed (at para. 34) “… a reasonable person knowing what the appellant knew would have recognized the risk of non consent and taken more steps to confirm communicated consent. Guided by the importance of respecting the complainant's human dignity, the reasonable person would have taken a further easy simple step: ask for consent. Doing so could have ensured clarity, dispelled unfounded assumptions and prevented the risk of nonconsensual sexual activity-the very risk that Parliament required the appellant to take reasonable steps to prevent”.
23When the sexual intercourse ended and the accused had ejaculated, N.M. and the accused got back into the front seat of his vehicle and N.M. asked to be taken to her hotel. Instead, the accused re-parked the car elsewhere in the lot and embarked on a conversation about his preferences in pornography, his interest in inter-racial sex, and other personal topics. N.M. found the conversation off putting and did not participate. The accused then began to encourage further sexual activity. He pulled down his pants and tried unsuccessfully to achieve an erection. He encouraged N.M. to masturbate.
24The evidence suggests that N.M. engaged in limited further sexual activity in the nature of masturbation, not intercourse. N.M.’s dress was wet and she explained she had urinated from the stress of the situation and the accused asserted that she had ejaculated. N.M. testified that she was not masturbating and implied she was going along with the accused who, she said, was digitally penetrating her and she was not actively resisting but was not enjoying it and was not happy about it. She said she was still in shock at having been subjected to vaginal intercourse while in the backseat of his vehicle. N.M. testified that she could understand if the accused believed she was willingly engaging in some continuing sexual contact after they had returned to the front seat of the vehicle. Her goal was to get back to the hotel and she told the accused that.
25To the extent it may be asserted by the defence that N.M.’s failure to confront the accused about the non-consensual intercourse or about remaining with him in the vehicle, listening to him discussing pornography, or engaging in limited further sexual activity with him, undermines her testimony about the intercourse or undermines her credibility in general, the court would entirely reject that conclusion. It has repeatedly been observed by our courts that stereotypical assumptions about how a sexual assault victim would behave in particular circumstances is inappropriate and misleading.
26The accused then drove N.M. back to her hotel and upon dropping her off, asked for her contact information, which she refused to give him. She ran into the hotel in a state of distress and immediately spoke to the night manager, advising that she had been sexually assaulted. A 911 call was placed just before 4:00 a.m. and the Ottawa Police responded on an emergency basis. N.M. provided OPS Officer Smith at the hotel with a brief summary of events highlighting that the accused “got on top of her, had vaginal intercourse and ejaculated into her vagina without wearing a condom”. Officer Smith drove N.M. to an Ottawa hospital to have a sexual assault kit completed. The hospital could not provide N.M. with the medical intervention she sought in a timely way. The officer then drove N.M. to the airport to catch her plane home, on the understanding that she would seek medical intervention upon her arrival home, which she did.
27I would note two procedural matters taken under reserve. The Crown sought an order for leave that the evidence on Counts 1 and 2 be admissible on a similar fact cross count basis. I reject this request. There are no similar facts to justify this request. The allegation that the accused picked up each complainant as they were leaving bars at closing time is much too generic to be of any probative value. Further, evidence was led that at the time of the arrest of the accused, the accused made several statements of an allegedly incriminating manner (“boys will be boys” etc.), but the evidence suggested he was likely talking about some altercation he had called the police about, which had happened the previous day and was irrelevant to the counts before the court.
28The accused is found guilty of count 2, sexual assault, for engaging in unprotected sexual intercourse with N.M. without her consent.
Justice Charles T. Hackland
Date: February 20, 2026
CITATION: R. v. Martin, 2026 ONSC 998
COURT FILE NO.: 24-11402270-A
DATE: 2026/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
- and -
Dylan Martin, Accused
COUNSEL: Ernesto Caceras, for the Crown
Amy Murchison, for the Accused
reasons for judgement
Justice Charles T. Hackland
Released: February 20, 2026