This week’s top three summaries: R v TG, 2026 ONCA 298: s.9 #mistake ID, R v JHC, 2026 ONCA 285: non-verbal #consent, R v SF, 2026 ONCA 293: bad character #consent

R v TG, 2026 ONCA 298

[April 29, 2026] Charter s.9: A Case of Mistaken Identity [Reasons on s.9 by Pomerance J.A. with J. George and L Favreau J.A. concurring on s.9, but forming different Majority on s.24(2) exclusion]

AUTHOR’S NOTE: A lawful arrest requires both subjective belief and objectively reasonable grounds. The objective component requires police to consider not only factors suggesting criminality, but also those pointing away from it. Tunnel vision cannot substitute for reasonable grounds.

In this case, police were preparing to execute a search warrant and were seeking a specific individual. When the target’s brother was dropped off nearby, officers mistakenly concluded he was the person they sought and immediately arrested him rather than conducting a brief investigative detention to gather further information.

That distinction mattered. By proceeding directly to arrest, police were required to already possess the higher constitutional standard required under s. 9 of the Canadian Charter of Rights and Freedoms. Yet several obvious features pointed away from identification:

• different facial hair;
• an approximately five-inch height difference; and
• a different complexion.

These were not minor discrepancies. The circumstances objectively called for further investigation, not immediate arrest.

The majority concluded the arrest was unlawful and excluded the firearm discovered as a consequence of the search incident to arrest.

Takeaway:
Reasonable grounds are assessed holistically. Police cannot selectively focus on inculpatory similarities while ignoring exculpatory differences. Where uncertainty remains, the appropriate response may be detention for investigation—not arrest.

[1] This appeal arises out of a case of mistaken identity.

[2] The police had grounds to arrest L.G. Instead, they arrested his brother T.G. Before the mistake was discovered, police found a gun and drugs in T.G.’s possession. The question is whether the arrest and search were lawful despite the fact that police arrested the wrong man.

[5] The trial judge found that, despite the mistake, the arrest and subsequent search were lawful. I do not agree. The police subjectively believed that the person they arrested was L.G. but that belief was not, in the circumstances, objectively reasonable. It was incumbent upon the police to take additional steps to discern the appellant’s identity before subjecting him to the most invasive form of detention. As the arrest was unlawful, it violated the appellant’s rights under s. 9 of the Charter and the search conducted pursuant to the arrest violated the appellant’s rights under s. 8 of the Charter.

II. BACKGROUND AND EVIDENCE

[8] The police obtained a search warrant for a residence. The target of the investigation was a young person named L.G., who was under investigation for various offences, including participation in a criminal organization, cocaine trafficking, and weapons offences.

[9] Police attended a briefing before attending at the location of the warrant. The briefing package contained a photograph and description of L.G.

[10] Two officers were in a marked cruiser parked near the residence to be searched. They were to assist with the transport of anyone who was arrested. At about 5:18 am, they were told by the officer in charge that L.G. was not at the address of interest and that they were no longer required.

[12] The officers saw the vehicle stop and a Black male passenger carrying a satchel exited the car. He was dropped off a few doors away from the target residence. The car drove away at a high rate of speed. The man began walking away from the residence that was listed in the warrant.

[13] The officers drove the car next to the man slowly as they tried to observe him. Both officers testified that, based on the man’s face and physical features, they believed him to be the man identified during the briefing and depicted in the photograph. Contrary to the photograph, the man being followed had a moustache, goatee and braids. The officers testified that they did not see this to be significant given that hair styles and facial hair can change. The briefing package said that the man to be arrested had a tattoo of a specific word on his right forearm. The police did not check for the presence of the tattoo. One of the officers explained in cross-examination, “we were concerned for our safety at that point making the arrest. So we weren’t, we weren’t going to start telling him to, to look over his tattoos and stuff.” There was also a height difference of approximately five inches between the two men, as well as a difference in complexion.

c. The Appellant is Stopped

[16] Having formed the belief that the man was L.G., one of the officers drove the car onto the sidewalk in front of the man to block his path. When asked his name, the man replied with a name that was not L.G.’s. The officer testified that he believed that the man had given him a false name. The man was trying to dial his phone but could not do so because he was shaking. He appeared to be panicking. This reinforced the officers’ belief that the man was L.G. The officer testified that he told the man to put his phone down, but he twice refused.

[17] The officers testified that, based on these observations, they believed that the man – the appellant – was the target of the investigation, that he might be armed, and that he might try to flee. They placed him under arrest and advised him of the charges listed in the briefing regarding L.G. The officers advised him of his right to counsel and handcuffed him.

d. The Appellant is Searched

[18] One of the officers was going to pat down the appellant as part of a search incident to arrest. He did not want to be cut by a sharp object, so he asked the man whether he had anything on him. The officer was concerned for his own safety and public safety in the residential area. The appellant replied, “To be honest, I have a gun”. At that point, the officer saw the butt of a Glock handgun coming out of the top of the open satchel. The officer removed the gun which had one hollow point bullet in the chamber and 12 hollow point bullets in an overcapacity magazine in the satchel.

[19] Before performing the pat down search, the officer asked the appellant if he “had anything else”. He replied, “I have crack in my right pocket”. The officer found two black knotted plastic baggies in the appellant’s left pocket, and a $20 bill in the right pocket. One bag was found to contain 1.78 grams of crack cocaine, and the other was found to contain 0.26 grams of crack cocaine.

f. Intention to Traffick

[26] Detective Sergeant Jeffrey Ross testified as an expert with regard to the possession of cocaine for the purposes of trafficking and possession of proceeds of crime under $5,000. He testified that the presence of two pieces of pre-wrapped crack cocaine in torn pieces of garbage bag, multiple cell phones, and the amount of cash seized were indicia of trafficking. Single-use plastics were consistently used to package cocaine at the street level. He testified that $1,820.00 was a significant amount of money, depending on what the individual’s resources were, for an average person. Handguns were consistently seen in the possession of persons who were traffickers, although a person with a gun could also be a drug user. Multiple cell phones were also commonly seen with drug traffickers, although not uncommon to the practice of many other businesses. The value of two grams of cocaine in 2018 was between $160.00 and $220.00.

d. Reasonable Grounds for Arrest: General Principles

[42] Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, provides that police may effect a warrantless arrest of “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”

[43] A warrantless arrest requires both subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; and Tim, at para. 24.

[44] In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence: Shepherd, at para. 17. This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4.

[45] The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer: Storrey, at pp. 250- 51; Latimer, at para. 26; Tim, at para. 24.

[46] There is no magic formula. Every case turns on its own facts. The standard of reasonable grounds takes its meaning from the surrounding circumstances. What constitutes reasonable grounds will depend on the context at issue, the nature of the criminal allegations, and the observations made by the police, viewed through the lens of common sense and experience: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22.

[48]….courts must ensure that the standard, as interpreted, offers adequate protection to civil liberties. The right of an individual to be let alone and to move freely is one of the central precepts of a free and democratic society. Interference with a person’s liberty is no small matter and must be carried out with due regard to constitutional limits and principles. The standard for arrest must not “leave law-abiding citizens at the mercy of the officers’ whim or caprice”: Wong Sun v. United States, 371 U.S. 471 at p. 479 (1963). Detention and arrest, themselves subject to constitutional review, often lead to other consequential intrusions, such as search.

e. Application of Reasonable Grounds

[50] The question in this case is whether the police had reasonable grounds to arrest the appellant. It is common ground that the police had the requisite grounds to conduct an arrest of L.G., based on cogent and compelling information pointing to his involvement in crime. The question, then, is whether police had reasonable grounds to believe that the appellant was L.G.

[53] I read Burke as, fundamentally, a case about deference. In that case, the trial judge had concerns about the credibility of the arresting officer and, on that basis, was not prepared to accept his testimony about the circumstances of the arrest. That finding set the contours for appellate review. By way of contrast, the trial judge in this case made positive findings of credibility, accepting the officers’ testimony that they subjectively believed T.G. to be L.G. at the time of the arrest. As in Burke, those findings, not marred by palpable and overriding error, are owed deference on appeal.

ii. Was that belief objectively reasonable?

[55]  We know, with hindsight, that the police arrested the wrong man. That does not, standing alone, mean that there were insufficient grounds to arrest. The police may be mistaken as to the facts, yet still have reasonable grounds. The probabilistic nature of the inquiry invariably leaves space for error: R. v. Whitfield, 2023 ONCA 479, 89 C.R. (7th) 117, at para. 21. Reasonable grounds can be based on a reasonable belief that certain facts exist, even if it turns out that the belief is mistaken: R. v. St. Clair, 2021 ONCA 895, 408 C.C.C. (3d) 117, at para. 26, leave to appeal refused, [2022] S.C.C.A. No. 238. As Cromwell J. stated in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23, “the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be”: see also R. v. Biron, [1976] 2 S.C.R. 56, at p. 72. The operative question is what the police believed, why they believed it, and whether that belief was reasonable in all of the circumstances. In order to pass constitutional scrutiny, “the mistakes must be those of reasonable [people], acting on facts leading sensibly to their conclusions of probability”: Brinegar v. United States, 338 U. S. 160 at p. 176 (1949).

[56] I do not see the mistake as to the appellant’s identity to be reasonable in the circumstances of this case. In this case, the officers inferred that the appellant was L.G. When the entire factual constellation is considered, that was not an inference objectively available on a probability standard. This is so, even accepting that the standard of reasonable grounds is a lesser standard than a prima facie case or balance of probabilities. The standard must be appropriately flexible and forgiving. It must not, however, be diluted to such an extent that an arrest – a significant interference with individual liberty – can be based on what the police acknowledge to be a poor vantage point for observation, discrepancies in physical appearance, and a failure to take readily available steps to confirm identity.[Emphasis by PJM]

[58] The trial judge found that the police did not merely stop a Black man who bore some resemblance to the photograph of L.G. They stopped a Black man who, from their vantage point, looked like the picture of L.G., who emerged from a fastmoving vehicle in the vicinity of L.G.’s residence, and immediately began walking away from the target address at a time of the morning when many people are still asleep. They observed the man carrying a satchel, which they had learned from the briefing might be used to carry a weapon. After the police stopped him, the man began shaking violently, at which point the police placed him under arrest.

[59] It is not uncommon for arrests to be based on circumstantial evidence: an amalgam of discrete items of evidence, some of which may be entirely neutral when viewed in isolation, but which, in the aggregate, support an inference of criminality: R. v. Nolet, 2009 SKCA 8, 245 C.C.C. (3d) 419, at para. 127, aff’d 2010 SCC 24, [2010] 1 S.C.R. 851, citing R. v. Drury, 2000 MBCA 100, 150 Man. R.  (2d) 64, at para. 90, leave to appeal refused, [2000] S.C.C.A. No. 619; see also R. v. L. (M.A.) (2003), 173 C.C.C. (3d) 439 (Ont. C.A.), at para. 6.

[60] The drawing of inferences from circumstantial evidence represents a process of inductive reasoning, whereby the “decision maker relies on logic, common sense, and experience”, applied against “the measuring stick of human experience”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 111-12, per Martin J. (dissenting, but not on this point). Circumstantial evidence requires the decision maker to make assessments based on probable interpretations of the evidence: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 71. Those interpretations will depend, to some extent, on the life experience the actor brings to the task, which informs the common-sense inferences that are drawn: Kruk, at para. 71. Common sense is a necessary part of the calculus, as are assumptions about how the world works, and how people generally tend to behave: see Kruk, at para. 74.[Emphasis by PJM]

[62] The grounds to arrest the appellant were rooted in circumstantial evidence. There was no direct evidence indicating the appellant was L.G. The police inferred this to be the case, relying on the various circumstances recited by the trial judge. However, those circumstances must be understood and scrutinized within the broader factual context. Other circumstances called into question the reasonable likelihood that the appellant was L.G.

[63] For example, the police knew their vantage point from inside the police vehicle was less than ideal. They believed that the man on the street was L.G., but they also knew that it was relatively dark, that the low vehicle ride height did not permit accurate assessments of height, and that they could only see the individual from a side profile. It was objectively unlikely that police could make an accurate identification from that observation point. From inside the cruiser, the officers could not accurately evaluate the individual’s appearance beyond a likeness of some sort to the photograph obtained during the briefing. However, even that likeness was objectively questionable. The photographs of L.G. and the appellant were entered into evidence. The apparent differences between the two, including hairstyle, facial hair, complexion, and height, vastly outnumbered the similarities. It is true that hairstyles and facial hair can change. However, the discrepancies between the photograph and the appellant’s physical appearance called for some additional investigation regarding the appellant’s identity.

[64] Other factors similarly point to the need for some additional confirmation of identity. The vehicle carrying the appellant entered the area at a high rate of speed. However, the appellant was not dropped off in front of the target residence of the search warrant. Instead, he was dropped off several houses down from that location. When he alighted from the vehicle, he walked away from the residence of interest, rather than toward it. Thus, there was no direct geographical nexus between the appellant’s conduct upon leaving the vehicle and the investigation that was underway. It was early in the morning, and the street was relatively deserted. However, it could not be the case that any Black man who entered the area faced the prospect of arrest. The trial judge rejected the suggestion that the officers engaged in racial profiling and that finding is owed deference on appeal. Nonetheless, given the appellant’s movements away from L.G.’s residence, his presence on the street offered only a minor link to the investigation.

[65] Even if it was open to the police to believe, from their vantage point in the cruiser, that the appellant might be L.G., once they stopped the appellant, there were objective and obvious indicia that he was not the man they were looking for. For example, it would have, or should have, been evident to the officers that there was a significant height difference between the appellant and L.G., with approximately five inches in disparity. The appellant provided a name that was not L.G. The officers explained in their testimony that people sometimes provide false names upon arrest. However, this was yet another indicator that the appellant may not be the person they had grounds to arrest.

[67] The standard of reasonable grounds is a lower standard than proof of a prima facie case or balance of probabilities. Yet, it requires more than a reasonable suspicion. As the Supreme Court of Canada explained in Beaver, at para. 72, “[r]easonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime” (emphasis in original): see also R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114.[Emphasis by PJM]

[68] While the standard does not imply certainty, police must advert to evidence that contradicts or detracts from the reasonableness of their belief. The police are not required to seek out exculpatory facts or to rule out possible innocent explanations for the events before making an arrest: Beaver, at para. 72; Chehil, at para. 34; Shepherd, at para. 23. Nor are police “required to evaluate evidence according to legal standards or to make legal judgments”: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 50. However, police must take account of exculpatory evidence that is available within the ambit of their understanding and/or field of observation: R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 60. They should only disregard information that there is good reason to believe is unreliable: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, leave to appeal refused, [1997] S.C.C.A. No. 571; Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474, at p. 499.[Emphasis by PJM]

[69] In these circumstances, it was incumbent upon the police to make further inquiries or observations before effecting an arrest. For example, the officers knew L.G. had a unique tattoo on his arm. Unlike hairstyles and facial hair, the tattoo was not something that could be readily changed or removed. The appellant was wearing a short-sleeved shirt. It would have been a simple matter for police to direct the appellant to show them his arms, so that they could confirm whether he was L.G. Alternatively, police could have asked the appellant to produce his identification before rushing to arrest.The evidence established that the satchel contained the appellant’s health card. A request to produce identification would have exposed the mistaken identification prior to arrest.[Emphasis by PJM]

[73] It is true that this case posed some operational exigencies….

[75] Here, the officers testified that they needed to stop the man and control the situation quickly. They learned at the briefing that L.G. was believed to be affiliated with a criminal organization and that he might be carrying a firearm. One of the officers testified that, once they determined they had L.G., the arrest “happened in a matter of seconds”. Events then unfolded in quick succession, with the police finding the firearm and the drugs. These were fluid circumstances. The police testified that the need to gain control was paramount and prevented a measured consideration of height and tattoos. The trial judge accepted this as a reasonable perception.

[76] I accept that the officers in this case perceived that they had to act with some dispatch. Moreover, they were not required to let the appellant simply be on his way. They did not have objectively reasonable grounds to believe that the appellant was L.G., but they did have a reasonable suspicion, sufficient to justify a brief detention for investigative purposes. The police had a sufficient basis for stopping the appellant to determine his identity, and whether he was L.G. The problem is that the police arrested first and inquired into identity later. They proceeded to the most intrusive form of detention – arrest – before taking reasonable steps to determine if arrest was warranted.

[77] An investigative detention is to be less intrusive than an arrest. An investigative detention is intended to serve as a relatively brief, and relatively noninvasive encounter between the police and an individual: Mann, at para. 45; Le, at para. 131. The exigencies described by the police in their testimony would have justified a brief detention for purposes of evaluating whether the appellant was L.G.; those exigencies said nothing about whether the appellant was L.G.[Emphasis by PJM]

[78] For all of these reasons, I find that the trial judge erred in finding that the police had reasonable grounds to arrest the appellant and that the arrest was lawful.

George J.A.:

[108] I have read the reasons of my colleague, Pomerance J.A. I agree with her that the trial judge did not err in finding the appellant possessed cocaine for the purpose of trafficking. I also agree that the appellant’s rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms were violated. However, I do not agree with her characterization of the police conduct nor with her assessment of the impact admission of the evidence would have on the long-term reputation of the administration of justice. I would therefore allow the appeal, exclude the evidence seized under s. 24(2), and substitute acquittals.

[117] In my view, although the police did not deliberately set out to violate the appellant’s Charter rights, the breach they committed was serious.

R v JHC, 2026 ONCA 285

[April 21, 2026] Sexual Assault and Consent: Verbal Communication not Required [Reasons by Fairburn A.C.J.O. with PJ Monahan and PJ Osborne JJ.A. concurring] 

AUTHOR’S NOTE: Consent in sexual assault law requires communication of voluntary agreement, but the law does not demand that sexual activity proceed like a negotiated contract with express verbal confirmation at every stage.

In this case, the Crown’s appeal was dismissed because, read as a whole, the trial judge accepted that the complainant’s consent was communicated through conduct and gestures, not merely words. The appellate court found no legal error in that approach.

The law requires affirmative communication, but that communication may arise from the surrounding circumstances and the actions of the participants. Consent can be conveyed non-verbally, provided the evidence supports a finding of a voluntary and contemporaneous agreement to the sexual activity in question.

Takeaway:
The legal requirement is communication of consent—not a formalized verbal script. Courts must assess the totality of the interaction rather than isolate the absence of explicit verbal statements.

I. OVERVIEW

[1] This is a Crown appeal from acquittals on counts of assault, choking and sexual assault. The allegations covered different dates, with the assault and choking said to have occurred on February 9, 2019, and the sexual assault said to have occurred between March and June 2019.

[2] The appellant submits that the trial judge’s reasons for judgment reveal two errors of law. First, the trial judge is said to have operated under the erroneous understanding that the law does not require separate consent to each step in a sexual encounter….

[3] For the reasons that follow, I would dismiss the appeal. As I will explain, it is important to read the trial judge’s impugned comments in context.

III. ANALYSIS

A. Overview

[24] In the appellant’s submission, the trial judge erred in:

(a) finding that the respondent did not need the complainant’s communicated consent to each sexual act; and

(b) drawing an adverse inference against the Crown for failing to call a witness.

1. The trial judge understood consent

[26] The appellant argues that the trial judge’s reasons make clear his erroneous belief that the respondent did not need to obtain consent to each sexual act. In advancing this submission, the appellant points to the following sentence in the trial judge’s reasons for judgment: “I disagree that the law requires the accused to obtain separate consent to each step of the sexual encounter.”

[27] There is no dispute in the law and there is no dispute between the parties that consent is required for separate sexual acts. This is, of course, consistent with 2026 ONCA 285 (CanLII) s. 273.1(1) of the Criminal Code, which defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question” (emphasis added). It is also consistent with the evolution of the law, which requires the “conscious agreement of the complainant to engage in every sexual act in a particular encounter”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31.

[28] The parties agree that the sexual activity in question was anal intercourse. The dispute is whether the trial judge misunderstood that there had to be consent to that specific sexual activity, as opposed to consent to sexual activity more generally. The appellant maintains that the trial judge was under a serious misapprehension as to the law of communicated consent, which is apparent not only in his reasons for judgment but also in a colloquy with Crown counsel in closing submissions.

[29] Recall that the complainant and respondent had fundamentally different versions of the sexual activity in question. The complainant testified that the respondent wanted to have anal sex, and that he told her that was going to happen and that she had “no choice” in the matter; it was painful, she cried and repeatedly said “no”. In contrast, the respondent testified that the sexual activity started with vaginal intercourse and eventually moved to anal intercourse. On his version, the complainant communicated her consent to both sexual activities through romantic touching.[Emphasis by PJM]

[31] The trial judge, perhaps understandably, understood the trial Crown to be suggesting that there was no verbal “discussion regarding anal sex” before it happened. With that apparent understanding in mind, he interjected that consent can get “very tricky” when sexual activity takes place on a continuum and that “presumably the law doesn’t require partners to obtain consent at each and every stage.” He then went on to make what was an inadvisable comment in the context of a sexual assault trial: the Crown was “too young to remember” the phrase about “singing and dancing” being forbidden because “singing leads to dancing, which leads to kissing, which leads to all sorts of things.” He added that the Crown may have been “applying an unnecessarily high standard in saying at every step of the way, consent must be verbally obtained and so forth” (emphasis added). The Crown maintained the reasonable position that vaginal and anal sex are “different acts”, and the trial judge seemed to agree: “Okay.”

[32] The Crown went on to clarify that the complainant’s evidence was that she said “no”, she told the respondent it “hurt”, and she was fearful, “believing she had no choice.” But even if the trial judge rejected the complainant’s evidence, the sexual assault would still be proven because, as the Crown contended, the respondent’s evidence disclosed an absence of communicated consent.

[33] In my view, the trial judge’s impugned comments must be considered against that factual context. His comments, both in the colloquy and his reasons for judgment delivered almost immediately after closing submissions, are a direct response to the Crown’s suggestion that the trial judge could reject the complainant’s evidence and yet still convict on the basis of the respondent’s evidence alone.

[34] I accept that the trial judge should not have used the expression he uttered during the colloquy. Given the seriousness of criminal trials, and especially sexual assault trials, it is advisable not to resort to colloquial expressions that might be perceived as making light of a serious issue. With that said, this was an experienced trial judge doing his level best to reach a just conclusion to this matter in a timely and effective way.

[35] I also accept that the trial judge’s reasons are less than perfect when it comes to describing what the law requires as it relates to consent: “I disagree that the law requires the accused to obtain separate consent to each step of the sexual encounter.”

[36] I do not accept, though, that the trial judge erred.

[37] The only reason why the trial judge addressed “separate consent” in his reasons is because the trial Crown shifted gears in his closing, as he was permitted to do, by arguing that the respondent’s own evidence made out a sexual assault because, as the trial judge understood the submission, there was no verbal consent to the anal intercourse. In making this submission, the trial Crown stressed that there was no “discussion” between the vaginal and anal sex. But, as the trial judge noted in his reasons, the respondent testified that the complainant communicated consent through gestures rather than words. In light of this context, I read the impugned passage in the reasons as missing one word, which I insert in brackets: “I disagree that the law requires the accused to obtain [verbal] separate consent to each step of the sexual encounter.”[Emphasis by PJM]

[38] I am confident in this conclusion because, not even a couple of hours before he delivered his judgment, the trial judge specifically expressed his concern that the trial Crown was “applying an unnecessarily high standard in saying at every step of the way, consent must be verbally obtained and so forth” (emphasis added). I am also confident in this conclusion, that the impugned passage was directed only at separate verbal consent, based on the sentence that immediately follows it: “The question is whether the Crown has proven lack of consent at any point in the physical encounter” (emphasis added). The trial judge clearly and correctly stated that the onus rested on the Crown to prove a lack of consent “at any point” in the sexual activity.

[39] In my view, this issue really comes down to the fact that the oral reasons for judgment, delivered shortly after closing submissions were completed, reflect a slip in language. The trial judge made credibility findings to which we owe deference. He did not accept key aspects of the complainant’s version of events. While he did not adopt the respondent’s version of events wholesale, that version was believable enough to raise a reasonable doubt about the complainant’s lack of consent.[Emphasis by PJM]

[40] I would not accede to this ground of appeal.