Mr. T was charged with sexual assault after his friend, Ms. C, accused him of engaging in sexual intercourse with her while she was passed out in his fraternity room bed. The central issue at trial was whether Ms. C “subjectively consented to having sexual intercourse with [Mr. T]” on that occasion or, “framed more narrowly, whether she had the capacity to do so.” The judge deemed the relevance of any previous sexual activity between the two as primarily “contextual” to this central issue.
The testimony provided by Mr. T and Ms. C were diametrically opposed on the issue of consent and on whether Ms. C had the capacity to exercise consent. While Mr. T claimed that Ms. C eagerly engaged in consensual sexual intercourse three times that night, Ms. C asserted that she was physically incapable of giving consent and unable to prevent him from assaulting her.
Given the he-said/she-said nature of the testimony, the judge primarily based his ruling on the principles governing the assessment of credibility. Mr. T’s defence team repeatedly shredded Ms. C’s credibility during cross-examination and by introducing a third witness. During cross-examination, Ms. C admitted that she was not wholly unconscious during the incident, as claimed during her initial testimony and had been conscious enough to withhold consent. Cross-examination also revealed that while Ms. C claimed that her seven-week relationship with Mr. T had been platonic until the incident, they had previously engaged in oral sex and other sexual foreplay numerous times. And while Ms. C continued to assert that she left the fraternity early the following day in a state of “fear, revulsion, and anger” after realizing that she “had been raped,” the defence witness testified that Ms. C had breakfast at the fraternity and helped with the after-party clean up.
In issuing a finding of “not guilty,” Judge G noted that his faith in Ms. C’s general trustworthiness had been impaired by the testimony, leaving him to doubt her allegations. In closing, the judge said the decision “reflects the inevitable result of the Crown’s failure to crest the high hurdle—that of proof beyond reasonable doubt—required to anchor a finding of guilt in criminal proceedings.”
Mr. J was charged with sexually assaulting Ms. V after she allegedly passed out on his bed with her friend, Ms. K, after a long night of partying. Mr. J’s defence did not challenge evidence that he had sexual contact with Ms. V but contended that it occurred with her consent. Mr. J did not testify during the trial or call any evidence.
In her initial testimony, Ms. V provided detailed descriptions of a long night’s partying at Mr. J’s apartment. She described her state just before the sexual assault as being “falling-down drunk.” During the alleged assault, she claimed that she passed in and out of consciousness, couldn’t remember whether any words were spoken, didn’t know whether Ms. K was still in bed with them, and asserted that she never expressed any consent to the activity to Mr. J.
During the defence cross-examination, Ms. V could not explain the distinct differences between the narrative of the described events in her original taped interview with police and the initial courtroom testimony concerning the narrative. In her taped police interview, Ms. V noted that she had fallen asleep in the bed while “spooning” with Mr. J before the assault occurred. She also told police that her alcohol consumption that night had been “typical,” with no reference to being “falling-down drunk.”
Ms. K’s cross-examination testimony offered no help to Ms. V’s narrative, as she testified that she awoke during the incident to the sound and feel of “shuffling” in the bed. Ms. K assumed this was caused by “mutual fondling and playing with each other” and noted that Mr. J and Ms. V then went into the bathroom, where she believes they showered together. She also rebutted Ms. V’s assertion that she was falling-down drunk and that there had been copious drug use at the party.
In coming to his decision to acquit Mr. J of the sexual assault charges, Justice B said that Ms. V’s evidence is “replete with major inconsistencies and troubling contradictions on central portions of her account.” Noting that her testimony provides the only evidence of non-consensual sexual activity, the justice said that “[i]t would be, at the very least, dangerous to rely” on it to reach a guilty verdict.
Charged with sexual assault and related allegations, Mr. M’s defence team applied for a stay of prosecution 21 months after he was charged based on Section 11(b) of the Canadian Charter of Rights and Freedoms. Under the current court-precedent-setting Jordan framework that mandates trial delays beyond 18 months as unreasonable, Justice M appropriately analyzed the reasons for the delay to account for defence-related delays, which reduced the net trial delay to just over 19 and a half months.
Using precedents set in the Jordan case and others, the Crown attempted to account for the remaining one-and-a-half-month trial delay by arguing that they were caused by “exceptional circumstances.” These circumstances included an unexpected sick leave of the officer-in-charge and “related disclosure lapses that precipitated the abandonment of the first trial date.”
Mr. M’s defence argued that the unexpected sick leave was a “red herring” to disguise the Crown’s numerous and systemic failures to provide the defence with complete disclosure materials. These disclosure failures included taking more than a year to get access to a video that the complainant had provided to police—and that police for some time claimed did not exist. The defence also pointed to the need to change trial dates due to the disclosure of a witness statement on the initial trial date from a witness the Crown had repeatedly said had “no relevant information” and would not be called as a witness.
In staying the sexual assault charges against Mr. M., Justice H noted that “[t]erminating a prosecution without regard to the merits is always unpalatable, especially when the charges are serious.” However, the justice held that “[a}pplying the Jordan framework analysis to the chronology of this case compels the conclusion that the delay in this case is unreasonable and constitutionally intolerable.” The disclosure process in this case did not constitute “an exceptional circumstance” worthy of trial delay and represented systemic failures in the Crown’s disclosure process.
Toronto Police charged Mr. B with sexual assault against Ms. Y, who alleged that the defendant engaged in non-consensual sexual intercourse with her in a parked car, after meeting each other at 2 a.m. outside of a nightclub. Justice W noted that the central issue in the case revolved around the reliability and credibility of Ms. Y and the related issue of consent.
Testimony provided by Mr. B and Ms. Y agreed on most details up to the time of the alleged sexual intercourse, in that the couple flirted, agreed to go to Mr. B’s car to smoke marijuana, and then engaged in consensual sexual foreplay. Testimony differed on Ms. Y’s alleged level of intoxication, her consent to intercourse, and her alleged angry state of mind after the incident.
During her testimony, Ms. Y claimed that while she was exceptionally intoxicated, this did not prevent her from repeatedly telling Mr. B that she did not want to have sexual intercourse. She also admitted to willingly engaging in sexual foreplay. In events leading up to and after the alleged assault, Ms. Y described herself as being nearly falling-down drunk, and said that she barely talked to Mr. B as he walked her back to the nightclub because of her anger.
Mr. B testified that Ms. Y consented to all sexual activities conducted in the car, and that she only became briefly angry with him when he told her he couldn’t drive her home due to his impairment. He also said that he did not think that Ms. Y was heavily intoxicated and that she did not appear to be at all angry with him when he walked her back to the nightclub. Mr. B’s defence team bolstered his testimony with video feeds from parking garage cameras, which showed Ms. Y walking to and from Mr. B’s car without any visible signs of intoxication. A camera which captured the couple leaving the garage after the alleged incident appeared to show Ms. Y smiling and playfully interacting with the accused.
Judge W described Mr. B’s testimony as “forthright, candid, and consistent,” but found Ms. Y’s to be inconsistent and partly “undermined” by the video evidence. Noting that he is “mindful that a criminal trial is not a credibility contest,” the judge said the “totality of the evidence and lack of evidence in this case raises a reasonable doubt” about Mr. B’s guilt and, thus, a finding of not guilty.
Mr. Z was charged with three counts of sexual assault against his ex-girlfriend, Ms. C, who alleged that the first sexual assault caused their breakup, while the subsequent ones occurred while he was trying to get back together with her. Contradictory testimony provided by Mr. Z and Ms. C included:
In her testimony, Ms. C firmly asserted that she broke up with Mr. Z in mid-February and did not want anything to do with him. However, Mr. Z’s defence presented digital conversation evidence that showed that Ms. C persistently pursued a connection with him for several weeks after the breakup. While Ms. C questioned whether they should break up, the conversations suggested that Mr. Z was trying to gently end the digital chats and move on from the relationship in an amicable manner. Additionally, the defence showed that Mr. Z ended up blocking Ms. C on social media, suggesting that if she truly wanted to end the relationship, she would have blocked him.
During cross-examination, Ms. C argued that the defence was taking social media conversations completely out of context and was unable to perceive the double entendres and sarcasm in her messaging. She also denied that inviting Mr. Z over to her home during the alleged second and third assaults was an effort to re-initiate their relationship, arguing that she was trying to finalize the breakup in person.
While Mr. Z’s defence argued that the court should make an adverse finding that Ms. C had fabricated the sexual assault allegations because she was angry with him for the breakup, Justice F rejected this as a “still persistent stereotypical argument that angry women lie about sexual assault.” However, he ruled that significant inconsistencies between her testimony and social media conversations “undermined her credibility and reliability,” raising enough reasonable doubt to find Mr. Z not guilty.
Toronto Police charged Mr. H with sexual assault against Ms. A, who alleged that the accused engaged in sexual intercourse with her without using a condom. Most of the evidence in the case was uncontested, as both parties agreed that Ms. A consented to the sexual activities the parties engaged in. The one contested issue, according to Justice B, is whether Mr. H had sexual intercourse with Ms. A without using a condom and, if so, whether she had “either stated that she did not consent to such intercourse without a condom or had withheld consent to such intercourse?”
Both parties testified that they did not speak of birth control or condoms before initiating sex, and Mr. H said that he did not have any condoms with him. However, Ms. A testified that Mr. H had retrieved a condom from his wallet and put it on his penis before they started having intercourse. At some point, she said the condom either slipped off or was removed by Mr. H, who ejaculated inside her.
Defence cross-examination exposed several contradictions in Ms. A’s initial account of the incident to the police, including:
Mr. H’s wallet further undermined the credibility of Ms. A’s testimony. Shown to the court, it clearly did not have any space to hold a condom, just a few credit cards.
In finding Mr. H not guilty of the sexual assault, Judge B said, “[t]he Court finds that [Ms. A] consented to vaginal sexual intercourse without any conditions tied to the location of ejaculation or the presence or absence of a condom.”
Toronto Police charged Mr. K with four counts of sexual assault on Oct. 25, 2022, following a workplace complaint made by a co-worker at St. Joseph’s. Mr. K’s trial was scheduled to end on Jan. 17, 2025, which was 26 months and 23 days after his arrest, well beyond the 18-month limit established by the Supreme Court.
As such, Mr. K’s lawyers petitioned the court to stay the charges based on the Section 11(b) violation of his Charter Rights. The subsequent hearing focused on analyzing the delay to determine what proportion of it could be attributed to the defence and thus be excluded from the total delay timeframe, as allowed under the Jordan decision analytical framework established by the High Court.
The Crown and Mr. K’s defence agreed that nearly four months of the total delay could be attributed to the defence. However, the Crown argued that another nine months and 12 days of the delay was caused by the defence request for CCTV video feeds from St. Joseph’s hospital. This would put the total trial delay below the 18-month limit, nullifying the alleged Charter violation.
During oral argument, Mr. K’s defence submitted that it had raised the issue of the CCTV footage in its initial disclosure request, both orally and in writing. Subsequently, the defence continued to delay setting the trial date while awaiting full disclosure of the materials, which had not been obtained for over a year.
In response, the Crown argued that the CCTV feeds were in possession of a third party and not held by the Toronto Police or the Crown, making them the defence’s responsibility to obtain.
Calling a stay of proceedings a “remedy of last resort,” Justice W stayed Mr. K’s charges because his right to be tried within a reasonable time had been breached due to the Crown’s inaction on the CCTV disclosure. The judge rejected the Crown’s argument based on testimony and email correspondence indicating that the Crown and Toronto Police “legitimately and appropriately pursued” the requested disclosure materials when the defence first asked for them. This made it “reasonable for defence counsel to conclude that the Crown and police had assumed responsibility for investigating and obtaining the [CCTV footage].”
