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The Defence Toolkit – July 19, 2025: Crown discretion

Admissions | Charter s24(1) Remedy | Probative v Prejudicial | Review of Crown Discretion

Posted On 19 July 2025

This week’s top three summaries: R v Varennes, 2025 SCC 22: #Crown discretion review, R v JN, 2025 ONSC 4041: #bad character, R v AC, 2025 ONSC 3892: #admissions explanation

R v Varennes, 2025 SCC 22

[July 11, 2025] Review of Crown Discretion: Charter 24(1), Abuse of Process, or Something Less? [Reasons by Karakatsanis J. with Côté, Martin, O’Bonsawin, and Moreau JJ. concurring, Separate Concurring Reasons: Rowe J. with Kaiser J. concurring]

AUTHOR’S NOTE:  The Crown’s dual role—as an impartial minister of justice under R v Boucher, and as a zealous advocate—can come into conflict, particularly where discretionary Crown decisions exert near-absolute control over key aspects of criminal litigation. In these situations, the courts retain jurisdiction to review and potentially overturn Crown decisions upon application by the defence.

Superior Courts possess inherent jurisdiction to review core prosecutorial discretion for abuse of process, while other prosecutorial decisions may be scrutinized under a lower standard. Core discretionary decisions are those that “directly impact the nature and extent of the criminal jeopardy to which the accused will be subjected.” Examples include:

  • Repudiating a plea agreement

  • Pursuing a dangerous offender application

  • Preferring a direct indictment

  • Selecting between summary and indictable procedure

  • Laying multiple charges

  • Negotiating pleas

  • Serving notice to increase penal consequences

  • Initiating an appeal

In addition, all courts may review prosecutorial conduct under s. 24(1) of the Charter, including for anticipated or probable future Charter violations.

In the case at hand, a Crown decision to insist on a judge and jury trial—despite the accused’s re-election request—was overturned under s. 24(1). The trial judge found an anticipatory s. 11(b) Charter violation, holding that jury trial delays due to the COVID-19 pandemic’s second wave made it likely that the accused’s right to be tried within a reasonable time would be infringed. The decision recognized that, in the right circumstances, even future rights violations can warrant judicial intervention.

[2] This appeal asks when a superior court judge can order a judge-alone trial for a murder charge, despite the prosecution’s refusal to consent under s. 473(1).

[3] The appellant, Pascal Varennes, was charged with the second degree murder of his spouse. His trial was scheduled for September 2020, during the COVID19 pandemic. In June 2020, he requested a judge-alone trial under s. 473(1). He argued, among other reasons, that pandemic-related delays to jury trials risked breaching his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[5] The appellant filed a motion seeking an order to proceed by judge alone. Concerned that pandemic-related restrictions would likely delay the trial, the trial judge found that the Crown’s refusal to consent was [TRANSLATION] “unfair or unreasonable in the circumstances” and ordered a judge-alone trial (2020 QCCS 2734, at para. 50). After trial, she acquitted the appellant of second degree murder and convicted him of manslaughter.

[7] ….On the second issue, I conclude the Court of Appeal erred by requiring proof of an abuse of process.

[8] Our law recognizes two distinct paths for superior courts to review decisions taken by prosecutors, such as a refusal to consent under s. 473(1). First, superior courts have inherent jurisdiction, including to review core prosecutorial discretion for abuse of process and other prosecutorial decisions on a lower standard. Second, superior courts may order an “appropriate and just” remedy for a rights violation pursuant to s. 24(1) of the Charter, including in anticipation of probable future breaches. Such s. 24(1) remedies can have the effect of overriding a prosecutor’s decision.

[9] Either legal framework — inherent jurisdiction or s. 24(1) — could empower a superior court to order a judge-alone trial for an offence listed under s. 469. The Court of Appeal focused on whether inherent jurisdiction applied in this case, but did not consider s. 24(1) as a separate font of jurisdiction.

[10] Like the trial judge, I conclude that the Crown’s decision whether to consent to a judge-alone trial is not a decision engaging core prosecutorial discretion, and so could be reviewed by the trial judge under her inherent jurisdiction on a standard lower than abuse of process. I also conclude that the trial judge found that proceeding with a jury trial would likely lead to unreasonable delay, and so had jurisdiction to grant her order as a Charter remedy.

[11] Reading the trial judge’s reasons as a whole, I would review her decision as an application of remedial jurisdiction under s. 24(1). The trial judge found as fact that without intervention, the appellant’s Charter rights were at substantial risk. Given the pandemic emergency, she concluded that proceeding with a jury trial would likely breach the appellant’s right to be tried within a reasonable time, and so violate s. 11(b)….

….Public health restrictions prevented large gatherings, to limit the grave risk of infection. Yet the jury selection process necessarily required gathering hundreds of people together indoors. Even if a jury could be selected, any infection amongst the jurors could derail the trial. With a second wave of infections approaching, there was sound reason to believe that a jury trial would not proceed in fall 2020, and for an indeterminate period thereafter. In this extraordinary situation, the trial judge’s findings of fact established an anticipated breach of s. 11(b) of the Charter.

[13] By ordering a judge-alone trial, the trial judge prevented a probable s. 11(b) breach and avoided a stay of proceedings, thus protecting the appellant’s rights while also respecting the Crown’s decision to prosecute the charge on its merits. Based on her findings of fact, I conclude that the order for a judge-alone trial was an appropriate and just s. 24(1) remedy. The Court of Appeal erred in ordering a new trial. I would allow the appeal.

[19] The appellant filed a motion seeking an order for a trial by judge alone on July 14, 2020 (A.R., vol. II, at pp. 2-8: [TRANSLATION] “Motion for a trial by judge alone (section 473 of the Criminal Code and sections 7, 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms)”). The prosecution responded to the motion by repeating its refusal to consent.

A. Superior Court of Quebec, 2020 QCCS 2734 (Mandeville J.): Judgment on the Accused’s Motion for a Trial by Judge Alone

[20] The trial judge allowed the motion for a trial by judge alone. She held that the prosecution’s decision to refuse consent to a trial by judge alone does not fall within the category of prosecutorial discretion reviewable only for abuse of process but is, rather, [TRANSLATION] “a tactical decision” (para. 51). She concluded that the prosecutor’s decision was “unfair or unreasonable in the circumstances”.

IV. Issues

2. Was the trial judge entitled to order a judge-alone trial?

B. The Trial Judge Had Jurisdiction To Order a Judge-Alone Trial

[37] Under ss. 471 and 473 of the Criminal Code, all trials for offences listed in s. 469, including murder, must take place in a superior court before a judge and jury, unless the accused and Attorney General consent to a trial by judge alone. Section 473(1) states:

473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.

[38] The key question in this appeal is: on what basis can a superior court judge order a judge-alone trial for an offence listed in s. 469, notwithstanding the Attorney General’s refusal to consent?2

[39] There are two recognized routes through which a trial judge can override a prosecutorial decision. First, superior courts have inherent jurisdiction to “control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner” (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18; see also R. v. Kahsai, 2023 SCC 20, at para. 36). Courts have inherent jurisdiction to review any prosecutorial decision for abuse of process. For decisions falling outside the core of prosecutorial discretion, a court may be able to review on a wider basis (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36). Second, judges have a constitutional duty to grant meaningful remedies in response to the violation of Charter rights. Courts can always review a prosecutor’s decision for compliance with the Charter Anderson, at para. 45). Either framework — inherent jurisdiction or Charter — could allow a superior court to order a judge-alone trial in the circumstances of a given case (see, e.g., R. v. McGregor (1999), 43 O.R. (3d) 455 (C.A.)).

[40] My analysis continues as follows. First, I shall explain why the Attorney General’s decision under s. 473(1) of the Criminal Code is not core prosecutorial discretion and therefore could be reviewed under a superior court’s inherent jurisdiction on a standard less than abuse of process. Second, I shall address how the Crown’s refusal to consent to a judge-alone trial can be overridden by a court using the framework for ordering remedies under s. 24(1) of the Charter in anticipation of a rights violation. I end by applying that framework to the factual findings made by the trial judge.

(1) A Decision Under Section 473(1) Does Not Involve Core Prosecutorial Discretion

(a) The Constitutional Role of the Attorney General

[42] The doctrine of core prosecutorial discretion derives from the Attorney General’s constitutional role as Chief Law Officer of the Crown (Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 45; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 34). The Attorney General has exclusive constitutional responsibility to determine whether to bring the weight of the state to bear in criminal prosecutions and is the “first representative of the Sovereign in the courts, in whose name nearly all criminal proceedings are conducted” (J. L. J. Edwards, The Law Officers of the Crown (1964), at p. 2; see also Wilkes v. The King (1768), Wilm. 322, 97 E.R. 123; Krieger, at para. 24; R. v. Power, [1994] 1 S.C.R. 601, at pp. 621-23).

[44] The Attorneys General exercise their constitutional Chief Law Officer function independently of partisan considerations and make prosecutorial decisions without interference from their cabinet colleagues (see generally Krieger, at para. 30; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47). Individual Crown prosecutors must also consider the broader public interest throughout the conduct of criminal proceedings (R. v. Thursfield (1838), 8 Car. & P. 269, 173 E.R. 490; R. v. Puddick (1865), 4 F. & F. 497, 176 E.R. 662). In Canada, Rand J. famously explained the Crown’s responsibilities in Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[45] When a prosecutor exercises discretion, they are presumed to do so in good faith, consistent with their Boucher responsibilities (Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95). To respect the separation of powers and prerogatives of the Attorney General, courts must adopt a posture of deference whenever reviewing a decision by a prosecutor or considering making an order that would have the effect of overriding a prosecutor’s decision.

(b) Core Prosecutorial Discretion

[46] ….These decisions lie within the inherent prosecutorial jurisdiction of the Attorney General and go to “the nature and extent” of the prosecution of criminal offences that come before the judge (Krieger, at para. 47). These decisions constitute “core prosecutorial discretion”.

[47] The use of the word “core” to qualify prosecutorial discretion does not imply that this is a narrow category Anderson, at para. 41). Rather, core prosecutorial discretion encompasses prosecutorial decisions derived from the core constitutional authority inherent to the Attorney General (Krieger, at paras. 43 and 49). Anderson confirmed Krieger and the criteria that applied to such discretion. Although Anderson suggested that the use of the word “core” had caused some confusion, in my view it helpfully distinguishes discretionary decisions that engage the inherent jurisdiction of the Chief Law Officer from other discretionary decisions that prosecutors make in the conduct of proceedings. Indeed, this Court has continued to refer to “core prosecutorial discretion” since Anderson….

…. Parliament has codified some core prosecutorial decisions in statute (Anderson, at para. 44). But what qualifies these decisions as core prosecutorial discretion is not their statutory nature, but their connection to the Attorney General’s inherent constitutional function.[Emphasis by PJM]

[48] In Krieger, this Court wrote that what unites instances of core prosecutorial discretion “is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for” (para. 47 (emphasis in original); see also R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 30). Both Krieger and Anderson note that core prosecutorial discretionary decisions impact the “nature and extent” of the criminal proceedings. They confirm that such decisions do not encompass those that impact how the proceedings will be conducted (see, e.g., Anderson, at para. 60, citing R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83). Rather, they involve decisions that fall outside the judiciary’s role in adjudicating matters on their merits. Anderson provides a list of examples of core prosecutorial discretion: whether to repudiate a plea agreement, to pursue a dangerous offender application, to prefer a direct indictment, to charge multiple offences, to negotiate a plea, to proceed summarily or by indictment, and to initiate an appeal (para. 44). Anderson also determined that a decision on whether to provide a notice that would increase penal jeopardy is an instance of core prosecutorial discretion (para. 63).[Emphasis by PJM]

[49] What is common to these examples is that they directly impact the nature and extent of the criminal jeopardy to which the accused will be subjected. These decisions are within the core constitutional jurisdiction of the Attorney General acting as the Chief Law Officer. Judicial deference to these decisions therefore respects the separation of powers and the constitutional role of the Attorney General (Krieger, at paras. 45-46). It also has the effect of serving the public good (Miazga, at para. 47).

[50] While core prosecutorial discretion demands strong deference, it does not demand absolute immunity from review.

[52] The abuse of process doctrine reflects the necessarily high threshold for the judiciary to invoke its inherent jurisdiction and intrude on the Attorney General’s core prosecutorial discretion.

[53] The doctrine of abuse of process applies in various fields of law and “engages the inherent power of the court to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute” (Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, at paras. 33-36). Courts must remedy an abuse of process because to allow trials to proceed in such circumstances “would tarnish the integrity of the court” (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

[54] In the criminal law context, abuse of process targets egregious conduct that threatens an accused’s right to a fair trial or undermines the integrity of the justice system (R. v. Brunelle, 2024 SCC 3, at para. 27; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31). This Court has called the threshold for finding an abuse of process in a criminal case “notoriously high” and stated that “successful reliance upon the doctrine will be extremely rare” (Nur, at para. 94; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 42). That said, abuse of process can exist even absent prosecutorial misconduct. I agree with the intervener the Attorney General of Ontario that this Court has recognized abuses of process in situations of both improper intent and abusive effects (I.F., at paras. 12-13; see also R. v. Keyowski, [1988] 1 S.C.R. 657; Babos, at para. 37).[Emphasis by PJM]

[55] In sum, where the Attorneys General or their agents make decisions that directly affect the nature and extent of the criminal jeopardy a person may face, these constitute decisions of core prosecutorial discretion and a court may not interfere under its inherent jurisdiction except to remedy an abuse of process.

[56] In addition to decisions directly affecting the jeopardy of an accused, prosecutors make a wide variety of discretionary decisions every day that do not fall within core prosecutorial discretion. Krieger and Anderson recognized that prosecutors make decisions relating to “tactics or conduct before the court”, which cover a wide range of decisions within the proceedings, including which charges to prioritize for limited court dates, what witnesses to call, what questions to ask, and how to present an opening or closing address — decisions that do not directly change the criminal jeopardy an accused may face (Krieger, at para. 47; Anderson, at paras. 57-61; see also R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at paras. 14 and 21). The term “tactics” does not mean that these discretionary decisions are unimportant. Rather, Krieger and Anderson used “tactics or conduct before the court” to reflect that these discretionary decisions do not attract the same separation of powers imperative as core prosecutorial discretion, since they do not tread on the core of the constitutional role of the Chief Law Officer.

[57]….Because these noncore decisions cover a broad range — from the everyday issues that form part of a litigant’s conduct of a trial to decisions authorized under statute — the standard for a judge to override a Crown decision will vary with the circumstances. The precise standard in a given case will depend on the nature of the Crown conduct, the presence or absence of statutory authority, the impact on trial fairness, and any other relevant interest (see, e.g., R. v. Cook, [1997] 1 S.C.R. 1113, at paras. 61-62; R. v. Samaniego, 2022 SCC 9, [2022] 1 S.C.R. 71, at paras. 19-26; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 36-37). As I shall explain, the fact that a non-core prosecutorial decision is made pursuant to statutory authority will require that deference feature prominently in the analysis.

(c) A Decision Under Section 473(1) of the Criminal Code Does Not Fall Within Core Prosecutorial Discretion

[60] With respect, I disagree. A decision under s. 473(1) affects the identity of the fact finder and the mode of trial. It does not impact the nature and extent of the criminal jeopardy facing the accused. It relates to how the proceedings will be conducted and not to whether a prosecution will be brought, or what the prosecution will be for. While the jury system is obviously a key feature of our criminal justice system, a trial by judge alone or a trial by judge and jury are two comparable routes to a fair trial of the charges laid by the prosecutor. As such, the Attorney General’s decision under s. 473(1) does not engage their core, inherent constitutional role as Chief Law Officer of the Crown.

[61] ….Courts must be respectful of Parliament’s legislative decision, made pursuant to its constitutional authority, to vest these responsibilities in prosecutors and the accused rather than the courts.

[62] This said, courts have a constitutional duty to review the executive’s exercise of delegated authority for legality and compliance with the Constitution (Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 360; Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140). Further, statutes cannot abrogate the inherent jurisdiction of a superior court, which includes jurisdiction to ensure that trials operate fairly and efficiently (Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291, at paras. 65 and 68, per Côté and Martin JJ., at paras. 232 and 234, per Wagner C.J., and at para. 301, per Abella J.). At a minimum, courts can still review decisions taken by prosecutors under delegated statutory authority for abuse of process.

[64] I need not decide what precise standard would be required for a court to review, under inherent jurisdiction, such a non-core prosecutorial decision made pursuant to statute, in the absence of full argument from the parties, given that the remedial jurisdiction under the Charter also applies in this case.

[65] In addition to inherent jurisdiction, the appellant invoked s. 24(1) of the Charter in his motion. The trial judge’s reasons for ordering a judge-alone trial related primarily to the risk of unreasonable delay.

[66] Delay that does not constitute an abuse of process can still violate s. 11(b) of the Charter. A trial judge’s discretion to remedy unreasonable delay under s. 24(1) of the Charter is therefore broader than it is under inherent jurisdiction (see generally R. v. Rahey, [1987] 1 S.C.R. 588, at pp. 635-36, per La Forest J.; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 45-49). I thus turn now to the framework for a trial judge’s remedial jurisdiction under s. 24(1) of the Charter.

(2) Remedial Jurisdiction Under Section 24(1) of the Charter

(a) Threshold: Proof of Breach

[69] To obtain relief under s. 24(1), a claimant must first prove a Charter violation on the balance of probabilities (Khadr, at para. 21).

[70] Section 24(1) remedies are available in anticipation of a probable future Charter infringement (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 450; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 50-51).

[72] Instead, before ordering a s. 24(1) remedy, this Court’s decisions require “proof of ‘probable future harm’” (G. (J.), at para. 51, quoting Operation Dismantle, at p. 458; United States of America v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 66). There is only one standard of proof for establishing prior, ongoing, and future Charter breaches: the balance of probabilities.

[73] There is no right under the Charter to a judge-alone trial (R. v. Turpin, [1989] 1 S.C.R. 1296). But the Crown’s insistence on a jury trial may engage an accused’s Charter rights in the specific circumstances of a case. Here, the appellant alleged that the Crown’s failure to consent under s. 473(1) would violate his rights under ss. 7 and 11(b) of the Charter. He was therefore required to prove, as a threshold, that without intervention he would likely suffer an infringement of one or both rights.

(b) Remedy: “Appropriate and Just in the Circumstances”

[76] An appropriate and just remedy will: (i) vindicate the claimant’s rights and freedoms; (ii) ensure future state compliance with the Charter; and (iii) compensate the claimant for the loss caused by any infringements (Doucet-Boudreau, at para. 55; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 25-29).

[77] The court must also consider whether countervailing factors make a specific remedy inappropriate in the circumstances. A s. 24(1) remedy should also: (i) respect the separation of powers; (ii) avoid imposing substantial hardships or burdens on the government; and (iii) avoid negatively impacting good governance (Ward, at paras. 38-44; Power (2024), at paras. 82-83; Doucet-Boudreau, at para. 58).

[81] ….Courts should thus be wary not to manage the conduct of a prosecution through s. 24(1), but to instead grant carefully tailored remedies that respond to the rights infringement without unduly upsetting the prosecutorial role of the Attorney General. However, the separation of powers does not imply a hierarchy, or demand immunity from judicial review. The judiciary is itself a branch of state, and the executive must yield to a court’s constitutional duty to protect the rights and freedoms of Canadians through meaningful remedies (Power (2024), at paras. 83 and 95; Khadr, at para. 36-37).

[86] It may be appropriate and just for a court to make an order under s. 24(1) that affects an exercise of core prosecutorial discretion, even absent an abuse of process. As our Court said in Jordan, “Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right” (para. 79; see also para. 138; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 110; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 5).

(c) Application to This Case

[88] This was not a typical s. 11(b) motion. The parties did not make submissions characterizing periods of delay between the laying of the charge and the anticipated end of the trial. However, the appellant argued at all levels of court for a judge-alone trial given the risk of unreasonable and indefinite delay. As I shall now explain, in the extraordinary circumstances of this case, where the trial judge was faced with a potentially indeterminate period of delay due to the pandemic, she was entitled under Jordan to conclude that without intervention the appellant’s s. 11(b) right to a trial within a reasonable time would probably be violated.

[89] I accept the trial judge’s factual findings, as well as her conclusions regarding an anticipated s. 11(b) breach, and would uphold her order….

[90] For the following reasons, the trial judge concluded that proceeding with a jury trial would likely prejudice the appellant’s Charter rights:

(i) The greater likelihood of infection with a jury of 12 to 14 people created a substantial risk (“risques substantiels”) of a suspension or delay of the trial. [TRANSLATION] “If counsel, the accused or the judge became infected or had to quarantine, this would necessarily result in either a significant suspension of the trial or even a mistrial” (motion decision, at para. 90).

(ii) Given the many uncertainties due to the pandemic, a jury trial would be more risky, time-consuming, and require more resources than proceeding by judge alone (para. 88). [TRANSLATION] “In the circumstances of the pandemic, which makes it difficult to hold an efficient and safe trial and which weakens the chances of the trial being completed within a reasonable time, the holding of a trial by judge alone is easily justified” (para. 87).

(iii) The risk to the appellant’s s. 7 right to make full answer and defence would be exacerbated by a jury trial, given the long commute to trial (an estimated total of four to six hours per day for over three weeks), which limited his ability to consult with counsel and prepare his defence (paras. 57-58, 79 and 105).

[91] The trial judge concluded that [TRANSLATION] “[t]he Prosecutor’s position is irreconcilable with her obligation to ensure that the trial is fair and that it is completed within a reasonable time” (motion decision, at para. 89). While the trial judge did not make a finding that the appellant’s s. 7 right to make full answer and defence would likely be breached, she was entitled to take any impact on that right into consideration in fashioning an appropriate and just remedy.

[95] The trial judge made her decision at the height of the pandemic, before a vaccine. Her findings of fact were grounded in the record as it existed in the profound uncertainty of summer 2020, and display no legal errors. The trial judge was also best equipped to determine whether the Crown had taken reasonable steps in response to an exceptional circumstance (Jordan, at para. 79).

[105] Ordering a judge-alone trial was a tailored remedy, using “a scalpel instead of an axe”, to prevent a breach while doing as little harm to other public interests as possible (O’Connor, at para. 69).

[107] Accordingly, based on her findings, I would affirm the trial judge’s order for a judge-alone trial. The Court of Appeal erred in holding that the trial judge made this order without jurisdiction.

VI. Conclusion

[108] I would allow the appeal and quash the order for a new trial.

R v JN, 2025 ONSC 4041

[June 11, 2025] Bad Character Evidence in a Judge Alone Trial [Anne London-Weinstein J.] 

AUTHOR’S NOTE: A persistent legal fiction within the justice system is the idea that judges can entirely disabuse their minds of improper or inadmissible evidence they hear during the course of a trial. Despite its implausibility, this concept remains a practical necessity given the structure of our courts. Judges regularly preside over voir dires—applications to exclude evidence—that unfold in the very trials they are ultimately tasked with deciding. Errors by Crown or defence counsel sometimes result in clearly inadmissible or prejudicial material being aired in court, forcing judges into the uneasy position of assessing whether they themselves can maintain impartiality despite having already been exposed to the material.

This creates a uniquely circular dilemma: the decision-maker must decide whether they can remain a neutral decision-maker in light of what they’ve already heard. In principle, this is akin to sitting in appeal of one’s own conduct. Yet, driven by the realities of limited judicial resources, this model persists largely unchallenged, even if the risk to fairness is obvious.

In a moment of judicial candour on this issue, Justice Anne London-Weinstein acknowledged this tension. In a case where the Crown sought to introduce discreditable conduct evidence—specifically, comments by the accused referencing potential sexual abuse of another minor—Justice London-Weinstein ruled the evidence inadmissible. She found that even sitting alone as trial judge, the tainting effect of the evidence would be difficult to overcome. The evidence was found to be more prejudicial than probative, especially since it was unnecessary to understand the relationship between the accused and the complainant.

Ironically, the judge had already heard the evidence as part of the admissibility application. Despite her ruling, she was now tasked with the difficult and arguably artificial task of disabusing her mind of its content—illustrating the ongoing tension between judicial impartiality in theory and practical necessity in reality.

[1] The accused is charged with the sexual assault of his daughter G.P. and a number of related offences, including indecent act, incest, sexual interference, and invitation to sexual touching. The offences are alleged to have occurred between January 2005 and December 2009 in Ottawa.

[2] The Crown seeks to adduce evidence arising from two statements against interest which the accused is alleged to have made to the complainant regarding his sexual interest in her cousin.

[3] The evidence sought to be adduced involves one incident where the accused is alleged to have penetrated the complainant with his penis. After he finished the sexual intercourse, the accused is alleged to have told the complainant to leave because he could not keep cheating on her cousin S. The complainant’s cousin S. is one year older than G.P. and was about 13 years old at the time of these allegations.

[4] On another occasion, the accused is alleged to have told G.P. he was going to kill himself if he did not get to take her cousin S back. Not too long after this incident, the sexual abuse resumed with G.P. as, on the Crown’s theory of the case, the accused was no longer sexually abusing S.

[5] The Applicant seeks to lead these statements as being relevant to narrative and the Respondent’s mens rea or state of mind. The evidence is not sought to be admitted on the basis that it is similar to the index offence before this court.

Legal Analysis:

[6] As a starting point, prior discreditable conduct evidence is presumptively inadmissible. The proposed evidence must be relevant, and material to an issue at trial and the probative value of the evidence must outweigh the prejudicial effects of admission: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.

[7] The Crown’s argument that these statements demonstrate the accused’s mens rea in relation to the commission of sexual offences against the complainant is based on the allegation that he sexually abused S. The evidence raises the potential for moral and reasoning prejudice to be introduced into the trial.

[9] While the Crown may not lead evidence that shows only that the Respondent is the type of person likely to have committed the offence in question, the Crown may call evidence that goes beyond this prohibited general inference. Framed this way, the evidence goes beyond a mere propensity argument that because the accused is alleged to have sexually abused S, he is more likely to have sexually abused G.P. The Crown argues that the use of the word “cheating” is revealing, in that it is an admission of sexual misconduct by the accused against G.P.

[10] The Crown also seeks to introduce this evidence to explain why there was a gap in the alleged abuse of G.P., and why it resumed when the accused was no longer abusing S. The evidence is probative of that issue

[11] However, this is a judge alone trial. Matters such as the chronology of events and purported delays in reporting do not need to be explained to a trial judge in the same manner that they might need to be with a jury.[Emphasis by PJM]

[14] In terms of reasoning prejudice, this evidence has the potential to be a distraction from the proper focus on the case before the court. A number of forms of distraction are described in David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020).[Emphasis by PJM]

[15] The first type of distraction is much like moral prejudice in that it describes how the trier of fact can be deflected from engaging in a rational assessment of the case by sentiments of revulsion and condemnation: Paciocco, at p. 94.[Emphasis by PJM]

[16] The second form of distraction arises from the risk that the court will be caught up in a conflict about the accuracy of the discreditable conduct evidence. In this case, the accused would be placed in the position of having to defend against the charge before this court and what he is alleged to have done against S. The prejudice which can arise from litigating these types of collateral issues is difficult for the accused to defend against and has the potential to sideline the trial: Paciocco, at p. 94. There is also the potential for unanticipated issues to arise which may require further litigation.[Emphasis by PJM]

[17] As mentioned, this is a judge alone trial, which is said to lower the risk of prejudice to the accused, given that trial judges are trained to avoid the prohibited inference: see R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at para. 27. The practical reality of the matter is that the evidence will be heard in any event by the trial judge on the admissibility voir dire

[18] The Court of Appeal for Ontario tends to treat prejudice as considerably reduced in judge alone trials: see e.g., R. v. Roks, 2011 ONCA 526, 281 O.A.C. 235, at para. 94

[19] However, this court finds itself in agreement with the following summary on the impact that prejudice may have in a judge alone trial in The Law of Evidence at p. 95:

Even judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial. As for reasoning prejudice, the superior ability of judges to focus on material issues does little for the impact admission can have on the length and complexity of the trial. For accused persons, attention and resources that could otherwise be expended addressing the charged allegations may be diverted to respond to the discreditable conduct evidence.[Emphasis by PJM]

[20] Given the context of this trial as a judge alone trial, I find that the necessity of the evidence to fill in a gap or a break in the alleged abuse is not required in order for me to understand how matters are alleged to have unfolded in the same way as might be warranted in a jury trial. Thus the probative value of the evidence to a material issue in this trial is reduced within the context of a judge alone trial.

[21] While the evidence is probative of the accused’s state of mind by the use of the word “cheating” and this evidence is an admission of sexual misconduct in relation to G.P., this evidence brings with it a host of complications and inherent prejudice in the Respondent’s ability to defend the allegations that he sexually abused S. There is a genuine risk that permitting the introduction of this evidence will sideline the focus of this trial.

[22] I find that the prejudicial impact of this evidence outweighs its probative value, and it is excluded from the trial.

R v AC, 2025 ONSC 3892

[July 4, 2025] Accused Admissions: Explaining They Didn’t Mean it [J.T. Akbarali J. ]

AUTHOR’S NOTE: Once an accused makes a statement that appears contrary to innocence—particularly one that seems to admit criminal conduct—the key question at trial often becomes: what did the accused actually mean? When the statement is made to someone not in a position of authority, traditional voluntariness concerns do not apply. Instead, the trier of fact must assess the context and credibility of the explanation provided.

In this case, the accused made a seemingly incriminating statement suggesting responsibility for a sexual assault. However, he successfully argued that the comment was not an admission of guilt, but rather a conflict de-escalation strategy, shaped by his diagnosis of Asperger’s Syndrome and training he had received in managing confrontational interactions. The trier of fact accepted that the accused’s motive was to calm the complainant, not to concede guilt.

Notably, this type of explanation does not necessarily require expert evidence or specialized training. In the digital age, especially in the context of sexual assault allegations, accused persons often respond to confrontational messages from complainants by appeasing language—acknowledging distress without admitting guilt. Such responses can easily be misunderstood as admissions when viewed in isolation. This case underscores the importance of interpreting alleged admissions within the broader emotional and communicative context, particularly in electronic messages, which are now routine evidence in sexual offence trials.

A second significant factor in the decision was an inconsistency by omission in the complainant’s account. When police first attended following her complaint, she did not mention a belief that she had been sexually assaulted, even though she later alleged she had been raped while intoxicated and without memory of the event. This omission was found to be material and impacted the credibility analysis of her later testimony, illustrating the importance of initial disclosures in assessing reliability.

Overview

[1] The defendant is charged with three counts of sexually assaulting the complainant contrary to s. 271 of the Criminal Code. He has pleaded not guilty to these charges.

Brief Background

[3] The defendant and the complainant met when they worked at the same restaurant. The defendant was later promoted and became the complainant’s supervisor. The two eventually became friends. They characterize their relationship thereafter differently

[4] The complainant testified that by the spring of 2021, she and the defendant were in a “situationship,” as “friends with benefits.” She agreed that during this time, the defendant was paying some of her expenses. According to the complainant, she and the defendant moved in together as friends in August 2021, and only after that became a couple.

[5] The defendant testified that they were dating by Valentine’s Day 2021, and then moved in together as a couple.

[6] ….After a few months of living together, the complainant stopped working, and the defendant began paying all their joint expenses and some of the complainant’s personal expenses.

[7] According to the defendant, the financial commitment became too difficult for him to manage. They then each moved back in with their families, but continued to date and did not break up.

[10] The first sexual assault charge relates to an incident in a minivan in the summer of 2021, a time when the complainant says she and the defendant were in a situationship, and the defendant says they were dating. The defendant and the complainant engaged in consensual sexual activity in the minivan. The Crown alleges that the complainant consented to the defendant digitally penetrating her vagina, but indicated she did not want to have vaginal intercourse. The Crown alleges that without the complainant’s consent, the defendant penetrated her vagina with his penis. I refer to this incident as the “minivan incident.”

[11] The second sexual assault charge relates to an incident in the complainant’s family home in December 2022, after she and the defendant were no longer living together. They were in a bedroom, and the defendant was giving the complainant a massage. The Crown alleges that the defendant began touching the complainant’s vagina and trying to digitally penetrate her. The complainant told him she did not want to be touched around her vagina, but the defendant persisted, and eventually the complainant acquiesced. I refer to this incident as the “bedroom incident.”

[12] The final sexual assault charge relates to events that took place on January 7 and 8, 2023….

[13] The Crown alleges that the complainant made clear to the defendant by text message before he picked her up that she was not interested in any sexual activity with him. The defendant learned on the drive to his condominium that the complainant was seeing someone else. Once back at the defendant’s condominium, the two began drinking and consumed a significant amount of alcohol. Each has gaps in their memory, but it is not disputed that they got into an argument during which the defendant threatened the complainant, who called 911. It is also not disputed that the defendant threw the complainant’s cell phone against a wall and damaged it.

[14] The Crown alleges that the defendant awoke the complainant the next morning because the police had arrived at the door. The Crown alleges that when she awoke, the complainant was on the floor in the defendant’s bedroom without any bottoms or underwear on, with bruised knees and a sore vagina. After discussions with police, during which the complainant made no allegations of sexual assault, the defendant was charged with uttering threats, and the complainant was escorted by police off the premises. However, she returned, and she and the defendant arranged for her to continue to stay in the condominium for the next day, and for the defendant to leave. The Crown alleges that as he left, the defendant suggested that the complainant get a pregnancy test. The Crown alleges that I should infer that the defendant had vaginal sex with the complainant during the night in question without the complainant’s consent. The complainant does not recall any sexual activity between her and the defendant that night. I refer to the events that led to the third sexual assault charge as the “condo incident”.

[15] ….He denies that any sexual activity took place between him and the complainant during the condo incident, and denies telling the complainant to get a pregnancy test. This case thus raises questions about whether the complainant consented to sexual activity during the car and bedroom incidents, and whether sexual activity occurred at all during the condo incident….

[16] This case also requires me to consider the import of various electronic messages sent between the defendant and complainant over Instagram. The Crown alleges these messages amount to the defendant acknowledging having sexually assaulted the complainant during the minivan incident. The defendant testified that the messages in fact reflect him using conflict resolution training he received over a number of years as a child in Taiwan, after he was diagnosed with Asperger’s Syndrome. He denies that the messages reflect anything more than his attempt to de-escalate a situation of conflict between him and the complainant.

Analysis

[27] I begin with my analysis of the defendant’s evidence, in accordance with the principles set out in W.(D.). For the reasons I describe below, I accept the defendant’s evidence, and find that it was forthright, consistent, and credible. He admitted engaging in problematic conduct like breaking the complainant’s cell phone and threatening her. He made concessions on crossexamination when appropriate. The defendant provided reasonable explanations. I accept his denials that he never sexually assaulted the complainant.

[29] I have concerns about the credibility of the complainant’s evidence. In examination in chief, she was asked why she decided to report the defendant to the police in January 2023. The first reason she gave was that the defendant had advised her he would not honour an agreement they had where he would pay for her phone that he broke, and that he would no longer pay their joint expenses related to their dog and the storage facility in which they were storing some of their things. She then explained that she was in a slump because of everything that had happened, which led to a confrontation with her father, during which she disclosed the sexual assaults, and her father encouraged her to report the defendant to the police. Later, in cross-examination, she added that she was disinclined to report the defendant because she was emotionally attached to him. I am troubled by the fact that the complainant’s decision to report the defendant seems primarily driven by his failure to pay for her cell phone and to continue to pay for some of her expenses. I am concerned about the credibility of the complainant’s evidence as a result.

[30] The complainant’s evidence about her relationship with the defendant was also inconsistent. With respect to the same time period, she testified that:

a. she was emotionally attached to the defendant;

b. she had become emotionally checked-out of their relationship;

c. in her mind, she was building her future around the defendant;

d. she was in a relationship with someone else.

[31] She later revised her evidence to say she was talking to someone else in a flirtatious way. But while talking to someone else in a flirtatious way was enough for the complainant to characterize her interactions with this new person as a relationship, she also denied being in a relationship with the defendant when they were spending a lot of time together, engaging in at least some consensual sexual activity during the minivan incident, and the defendant had given her the details of his two credit cards for her to save on her phone and was allowing her to pay some of her expenses with his money. The complainant’s evidence about what being “in a relationship” meant to her shifted in a way that seemed designed to cast the defendant in as negative a light as possible.

[32] The complainant’s evidence about her relationship with the defendant was not consistent; it changed when she realized she had given evidence that did not make sense, and she offered rationalizations that were not rational. This causes me further concern about the credibility of the complainant’s evidence.

[34] Even if I did not accept the defendant’s evidence, I would be left with a reasonable doubt as to his guilt.

The Minivan Incident

[42] Following the sexual contact in the minivan, the defendant testified that he made a terrible joke. He testified that he said to the complainant, “maybe next time I should rape you.” He indicated that he often made insensitive and provocative jokes. The complainant did not react well. She became very upset and yelled at him. She began to cry. The defendant testified that he apologized repeatedly. After about 20 or 30 minutes, she calmed down. They returned to the front seat. He bought her some dessert and drove her home.

[43] The complainant testified that she was in denial about the non-consensual sexual activity in the minivan “for a while.” She testified that later, on a different day, the defendant made a rape joke, where he said, “If I rape you again, I better make it good.” According to the complainant, she told him she did not appreciate the joke, especially after he “kind of almost raped her,” and he agreed, he “kind of did, or it kind of was [rape].”

[44] This evidence is in reference to a series of Instagram direct messages between the defendant and the complainant which are in evidence. In them, the complainant suggested that the defendant sexually assaulted her. For example, her messages include:

 “hey I said don’t put your dick in me” “it’s barely in”

 And now it’s going to be another thing my brain forces out of my memories because it can’t stand having it in there

[45] In the messages, the complainant indicated she wants to be the defendant’s friend, but doesn’t want anything more than that. She then said:

 I can’t believe you said “I want to rape you” to my face

 You kind of almost have[Emphasis by PJM]

[46] The defendant responded, “yes,” and “I’m fucked…”[Emphasis by PJM]

[47] The defendant asked the complainant if she would give him a hug “tomorrow.” She responded that she did not want to feel obligated to give physical comfort to a person who assaulted her, and then said, “I will hug you if I feel like it.”

[48] The complainant then said she was trying to keep distance from anything that could feel similar to a date because “of the whole you doing something something that…uhh…could be considered almost rape?” The respondent answered “ok…it umm…kind of…was”

[49] When the respondent said he did not know how he could make up to her, the complainant said he could not: “like I’m sorry but you can’t make up for having sex with someone who said no.” The defendant apologized. The complainant answered, “pizza taste good yummy,” which she testified was designed to de-escalate the conversation.

[50] The defendant explained the Instagram messages with reference to his training in Taiwan. He explained that he had been diagnosed with Asperger’s Syndrome as a young child. While he was in elementary school in Taiwan, he attended special education classes where he participated in an ongoing emotional control program with a main focus on conflict de-escalation. He explained that over many years, he was taught to manage conflict by leaving the scene of the conflict, ignoring the other party, and reaffirming the other party’s feelings. He indicated he had been taught to always start with apologies and reaffirm the other party’s feelings to de-escalate the conflict.[Emphasis by PJM]

[51] The complainant agreed that already when she and the defendant were only work colleagues, she knew he was autistic. She testified that he would say weird things in the break room at work and make bad and inappropriate jokes. He had difficulty reading social cues and at times would react in ways that were not respectful or polite.

[52] There is no medical evidence confirming that the defendant has Asperger’s Syndrome. The defendant testified that his parents chose not to have him assessed after he left Taiwan because they were worried about the potential that he would face stigma as a result. The Crown argues that expert evidence was required, but none offered, to allow me to understand the emotional control program that the defendant testified to.

[53] I disagree. The defendant gave fact evidence about what he had learned in this training program and how he applied it in the context of events relevant to the charged offences. I am not being asked to evaluate the efficacy of the emotional control program the defendant was enrolled in, or even to determine whether the defendant in fact has Asperger’s Syndrome. Rather, the defendant offered fact evidence about his training to explain his response to the complainant’s Instagram messages. I do not need expert evidence to evaluate whether the defendant’s behaviour reflects the training he testified that he received.[Emphasis by PJM]

[54] I find that the defendant’s behaviour is explained by his training. He was attempting to de-escalate the conflict situation with the complainant by affirming her feelings and apologizing. In reaching this conclusion, I note that the evidence is replete with examples of him de-escalating conflict with the complainant in a manner that prioritized her interests over his own[Emphasis by PJM]

[55] For example, as I will discuss below in the context of the condo incident, when conflict arose over the complainant’s new relationship, the defendant tried to drive her home rather than bring her to his condo, to remove himself from the situation of conflict. The complainant insisted that she wanted to go home with him, and he eventually agreed. When the police officers told him he could not be in contact with the complainant anymore, the defendant allowed her to return to his condo when she called and asked to return, and then he eventually left her there and spent the night in his car, rather than insist she leave the condo. When there was conflict between them, the defendant repeatedly applied his training to apologize, validate the complainant’s feelings, try to absent himself from the situation, and eventually, give in to the complainant’s wishes.

[56] I accept the defendant’s evidence that the sexual activity in the minivan was consensual, and that the Instagram messages reflect his efforts to de-escalate conflict with the complainant by applying his training, rather than any true admission that he sexually assaulted her. Even if I did not accept his evidence, I would be left in reasonable doubt by it.

[57] I conclude that the Crown has not established beyond a reasonable doubt that the complainant did not consent to the sexual activity in the minivan. I thus acquit the defendant of the charge of sexual assault related to the minivan incident.

The Bedroom Incident

[63] As I have indicated, I accept the defendant’s evidence that he sought and obtained the complainant’s consent for the sexual activity that occurred in the bedroom. Even if I did not accept his evidence, I would be left in a reasonable doubt by it.

[64] The Crown has not proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in the bedroom. I find the defendant not guilty of the count of sexual assault relating to the bedroom incident.

The Condo Incident

[75] The complainant agreed that she and the defendant both consumed a lot of alcohol. She blacked out. There are gaps in her memory. After her recollection about sitting together in the living room watching the movie, the next thing she recalls is running away from the defendant while he was threatening to kill her. She ran into the bathroom, into the shower, and dialed 911. Once she got on the phone with the police, the defendant grabbed her phone out of her hand and threw it at the wall in front of her. She testified that it was completely shattered, although she also testified that after she charged it the next day it was functional, though a little bit scuffed.

[76] After the defendant threw her phone, the complainant testified she has another gap in her memory. The next thing she recalls is waking up on the floor of the defendant’s bedroom to him telling her the police were at the door. She testified that she awoke wearing only a sweater, without bottoms or underwear on. She had pain around her vagina, and bruises around her knees, neither of which were present the night before. She recalled getting up, putting on sweatpants, and opening the door for the police officers. She spoke to police and reported that the defendant had threatened her. She did not report any physical assault. She did not seek medical assistance.

[77] The defendant testified that when police knocked at the door, he went to wake up the complainant. She was wearing a sweater and shorts and was asleep on the floor. The defendant’s recollection of what the complainant was wearing is consistent with the body worn camera footage from the police officers that show her in shorts and a sweater while she spoke with them, not the track pants the complainant testified she put on.

[79] One of the officers escorted the complainant out of the condo. She went to a nearby juice bar and charged her phone. She messaged the defendant to ask if it was clear so she could return to the condo. The defendant told her not to contact him again. Notwithstanding, she continued to contact him, and said she needed to get her things from his condo. He allowed her to return.

[82] According to the complainant, she and the defendant agreed that she would stay in the condo while they waited for the vet appointment for the dog. She stayed for two days by herself in his condo. She testified that he went to stay with a friend. The complainant said that, as he was leaving the condo, he told her she might want to get a pregnancy test done. She understood from that comment that he had had vaginal intercourse with her while she was blacked out. She does not recall any sexual activity between them that night.

[83] The defendant testified that he did not want the complainant to stay. He offered to pay for an uber ride for her to take the dog to the vet on January 9, 2023, but she insisted it was more convenient for her to stay at the condo. He gave into her demands to stay to de-escalate the conflict. He decided to remove himself from the scene of the conflict, so he left his condo. He spent the night in his car at his workplace office’s parking lot.

[84] The defendant denied telling the complainant to get a pregnancy test as he left the condo. He denied having any sexual contact with the complainant on the night in question.

[85] On cross-examination, the complainant was asked whether the defendant ever said that he had had sex with her on the evening in question. For the first time, she indicated that she thought he might have said so. She testified that when she asked him what happened that night, he mentioned they engaged in sexual activity, though not necessarily vaginal intercourse. However, she no longer had the messages in which the alleged statement was made, because, according to the complainant, the defendant deleted all the messages on the social network they used to communicate about the condo incident. She indicated that after police had gotten involved, he started contacting her through a discord server, on which he made the statement about having sexual contact with her. When asked why she had not brought up these alleged messages before, she said it slipped her mind. She did not make any allegation in her initial statement to police that he had admitted having sexual contact with her. Later in her cross-examination, she revised her evidence to say that the conversation definitely occurred in which the defendant mentioned a sexual act that took place while she was unconscious.

[86] In my view, the complainant’s testimony on this point is inconsistent, and I do not accept it. If the defendant had admitted to engaging in a sexual act with her while she was unconscious, she would have disclosed that information to the police during her initial statement. That allegation would not have arisen for the first time on cross-examination. Moreover, it makes no sense that the defendant would have deleted the messages admitting to assaulting her in January 2023 while not deleting the messages discussing the minivan incident[Emphasis by PJM]

[87] I accept the defendant’s denial that any sexual contact occurred between him and the complainant during the condo incident. Even if I did not accept his evidence, I would have a reasonable doubt.

[88] The Crown has not proven beyond a reasonable doubt that the defendant intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity. I therefore acquit the defendant of the sexual assault charge related to the condo incident.

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