New trial ordered

Jury wrongly told consent must be communicated; Ontario Court of Appeal orders new sexual assault trial

A judge told jurors there was no consent in law unless the complainant communicated it by words or conduct. That is not the law for the act of sexual assault. Combined with a Crown closing that said the accused had every reason to lie, the conviction could not stand.

R. v. C.L., 2026 ONCA 791

6 min read

Court: Court of Appeal for Ontario
Decided: Nov 6, 2026
Conviction to this result: 2 years
Sentence: Three years in custody (imposed April 11, 2025)

Appeal allowed, conviction set aside, new trial ordered The conviction was set aside, but the charge can be tried again. The presumption of innocence applies.

What happened

The appellant and the complainant had been friends for about five years. In July 2022 they went out for dinner. Before the meal the appellant offered her a drug they called G, and both took it. They kissed at the restaurant, kissed again on the way to the car, took more of the drug, and drove to the lakeshore. The complainant said she went along with kissing but tried to stop the appellant from going further. The appellant said she initiated the contact. She felt unwell and asked to be driven home. He was allowed to stay at her apartment. Sexual activity followed. Her account was that she was trying to find any reason to say no, that he kept pressing while she resisted, and that he then touched her sexually. She said that at that point she gave up, wanted it over, and did not remember saying yes to anything. His account was that she asked him to have sex, that he checked with her several times, and that she directed what happened. The next morning the two exchanged friendly texts and went for coffee. Two days after the dinner she texted that she felt violated and was pretty sure she had said no several times. He replied with an apology that he later said was meant to be empathetic, not an admission. At trial the only witnesses were the two of them, and the only issue was consent. The jury convicted. The appellant appealed, arguing that the jury instruction on consent was wrong in law and that the Crown's closing address improperly told jurors he had every reason to lie.

Procedural history

Jul 2022
Alleged incident: the appellant and the complainant, friends of five years, went to dinner, took a drug they called G, and later had sexual contact at her apartment
Undated
C.L. charged with sexual assault and elected trial by judge and jury
Dec 12, 2024
Jury found the appellant guilty of sexual assault; conviction enteredSuperior Court of Justice (Boucher J.)
Apr 11, 2025
Sentence of three years in custody imposedSuperior Court of Justice (Boucher J.)
Sep 15, 2026
Conviction appeal heard by Thorburn, Monahan and Osborne JJ.A.Court of Appeal for Ontario
Nov 6, 2026
Appeal allowed, conviction set aside and new trial ordered (unanimous)Court of Appeal for Ontario

The offence and its elements

Sexual assault

Criminal Code, R.S.C. 1985, c. C-46 (the decision does not cite the section number)

What the prosecution had to prove:

The accused intentionally touched the complainantnot disputedFrom the reasons
The touching was of an objectively sexual naturenot disputedFrom the reasons
The complainant did not subjectively consent to the sexual touching, meaning in her own mind she did not want it to take place; the law does not require that consent be communicated for this element, although evidence of communication may be relevant to whether she in fact consenteddisputedFrom the reasons
The accused knew the complainant was not consenting, or was reckless or wilfully blind as to whether she consented. The court set out this fault element and noted that an accused may answer it with the defence of honest but mistaken belief in communicated consent, but that defence was never raised at trial and was not relevant to this appealnot disputedFrom the reasons

The questions on appeal

Was the jury wrongly instructed that the complainant could not consent in law unless she communicated her consent by words or conduct, and if so, does that require a new trial?: Yes on both points. Both sides agreed the instruction was wrong. For the physical act of sexual assault, consent is about what the complainant actually wanted in her mind. There is no legal requirement that she communicated it. Evidence of communication is still relevant: it can be circumstantial evidence that raises a reasonable doubt about whether she in fact consented, and it also matters to the separate defence of honest but mistaken belief. But a jury may find subjective consent even without any evidence of communication. By treating communication as a legal precondition, the trial judge added a hurdle the law does not impose. The error was repeated twice and could have turned a reasonable doubt into a conviction. The Crown could not show it was harmless, so the curative proviso did not apply.
Did the Crown's closing remarks that the appellant had every reason to lie, without a proper corrective instruction, undermine the presumption of innocence?: Yes. Telling a jury that an accused has a motive to lie, with no stated motive other than the obvious one of avoiding conviction, invites the forbidden assumption that accused people lie to get acquitted. The corrective instruction given addressed only whether the appellant had to prove the complainant's motive to lie, not the Crown's comments about his own. This also warranted a new trial.

The law the court applied

Consent at the act stage versus the intention stage

For the actus reus (the physical act), consent means the complainant in her own mind wanted the sexual touching. For the mens rea (the intention), and specifically the defence of honest but mistaken belief, consent means she affirmatively communicated agreement by words or conduct. The two must be kept separate. Evidence of communicated consent may be used at both stages for different purposes, but communication is not a requirement at the act stage, and a jury may find subjective consent without it.

R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 29 and 48-49; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para 37

Credibility in a two-witness case (W.(D.))

If the jury believes the accused, acquit. If they do not believe him but his evidence leaves a reasonable doubt, acquit. Even if his evidence raises no doubt, the rest of the Crown's evidence must prove guilt beyond a reasonable doubt. A jury may accept some, all or none of any witness's evidence.

R. v. W.(D.), [1991] 1 SCR 742, at para. 11; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65

Curative proviso

The proviso lets an appeal court dismiss an appeal despite a legal error if no substantial wrong or miscarriage of justice occurred. The Crown must show the error was harmless or that the evidence was so overwhelming the verdict would necessarily have been the same. Findings implicit in a jury verdict can be used only if they are untainted by the error and unambiguous.

Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii); R. v. Ronald, 2019 ONCA 971, at paras. 65, 68; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823

Improper Crown closing

First ask whether the Crown's conduct was improper. If it was, ask whether, in the context of the whole trial, it caused a substantial wrong or miscarriage of justice. Relevant factors are the seriousness of the comments, their context, whether defence objected, and what corrective steps the judge took. Lack of objection is a factor but not an unscalable barrier.

R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 107

Motive to lie and the presumption of innocence

Both innocent and guilty accused have an interest in not being convicted, so assuming an accused will lie to secure an acquittal offends the presumption of innocence. Counsel should not generally invite a jury to weigh the accused's self-interest in the outcome when assessing credibility.

R. v. Chacon-Perez, 2022 ONCA 3, at paras. 116-117; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397; R. v. Shabbir, 2024 ONCA 750

What the court decided

The Court of Appeal for Ontario, in reasons by Thorburn J.A. with Monahan and Osborne JJ.A. agreeing, allowed the appeal and ordered a new trial. Two independent errors each justified that result. First, the trial judge told the jury, twice, that there was no consent in law unless the complainant communicated her agreement by words or conduct. That wrongly imported the communication requirement from the honest but mistaken belief defence into the actus reus, the physical act of the offence. Because the whole trial turned on two conflicting accounts, there was a reasonable possibility the jury convicted while believing the complainant had actually consented. The Crown could not meet its burden under the curative proviso. Second, the Crown's closing twice told the jury the appellant had a motive to lie, with no motive on offer other than avoiding conviction. That invited reasoning forbidden by the presumption of innocence, and the corrective instruction actually given did not address it. The decision is published on the Court of Appeal's website with a neutral citation.

What happens next: A new trial has been ordered. The appellant is presumed innocent. If a retrial takes place, the question of consent would be decided afresh by a properly instructed trier of fact. The decision does not say when any new trial will take place or whether the Crown intends to proceed.

Analysis

This is our commentary, separate from the court’s reasons.

Why one sentence in a jury charge was enough

The error here was not exotic. It was a blurring of two ideas that sound alike. Canadian law asks two separate questions about consent. Did the complainant, in her own mind, want this to happen? And, if she did not, did the accused honestly but mistakenly believe she had communicated agreement? Communication is a legal requirement only for the second question. It is not irrelevant to the first: what a complainant said or did can be circumstantial evidence of what she actually wanted, and the court was careful to say so. The difference is between evidence and precondition. By making communication a precondition for the first question, the trial judge told the jury that even a complainant who truly wanted the activity had not consented unless she showed it. That is a burden the law does not impose, and it fell on the accused. In a trial with only two witnesses, where the jury was free to believe parts of each account, that extra hurdle could easily be the whole difference. The court's two worked examples show how: jurors might have accepted that she agreed, yet convicted because she did not say so. Neither party objected at trial and both agreed on appeal that the charge was wrong. The court still had to decide whether the verdict could be saved. It could not, because the implicit findings in a jury verdict can only rescue a conviction if they are untouched by the error, and here the error went to the only live issue.

A quiet form of burden shifting

The second ground is more subtle and in some ways more instructive. The Crown never said the appellant would lie to avoid prison. It simply said he had every reason to lie and the complainant had none. The court held that where no other motive is suggested, the only inference available to lay jurors is the forbidden one: that a person on trial will say whatever gets him acquitted. That assumption treats the presumption of innocence as if it had already been displaced. What makes this case a useful study is the way the objection went astray. Defence counsel raised the point but framed it around the complainant's motive, and accepted an instruction that answered a different question. The court was candid that this was unfortunate, but it did not let the misdirected objection close the door. The failure to object is a factor, not a bar, especially where fair trial rights are engaged. The court also sketched the instruction that should have been given, which future trial judges and counsel will find useful.

What this decision does and does not decide

A new trial is not a finding of innocence, and the court made no assessment of which account was true. The complainant's evidence and the appellant's evidence were both set out so that the reader could see why the errors mattered, not to weigh them. The court also noted that honest but mistaken belief was never raised at trial, so the appeal concerned only the act of the offence, not the fault element. The decision adds to a growing line of Ontario authority, including Chacon-Perez, Shabbir and D.B., that polices how juries are invited to reason about an accused's credibility. It also illustrates a recurring source of unsafe verdicts: a legal misstatement on the central issue that no one catches in the moment. Appellate courts take the view that the trial judge is responsible for a correct charge regardless of what counsel did or did not say, and this case applies that principle firmly.

If this feels close to home

A jury instruction can be challenged on appeal even if no one objected at trial. The trial judge bears responsibility for stating the law correctly, and a misstatement on the central issue is hard for the Crown to excuse as harmless.
In sexual assault cases, the distinction between actual consent and communicated consent matters. Communication is a legal requirement only for the defence of honest but mistaken belief. For whether the complainant in fact consented, it is evidence the jury may weigh, not a precondition. A charge that turns it into a precondition is an error of law, so transcripts are worth reading closely for this.
Comments that an accused has a motive to lie because of the charges he faces are improper. If the corrective instruction given at trial did not address that specific comment, the point may still be arguable on appeal.
When the Crown relies on the curative proviso, it must show the error was harmless or the evidence overwhelming. In a credibility contest between two witnesses, that is a demanding standard.
A successful appeal of this kind leads to a new trial, not an acquittal. The presumption of innocence applies at any retrial, and the outcome there is a separate question.

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What went wrong

Trial judge error Police or Crown misconduct

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Nov 7, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

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Yukon Court of Appeal orders new sexual assault trial after Crown breached a sexual history ruling mid-trial

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Citations

R. v. C.L., 2026 ONCA 791 The present decision
R. v. Ewanchuk, [1999] 1 S.C.R. 330Definition of the act of sexual assault; the distinction between consent at the act stage and the intention stage; evidentiary use of communicated consent
R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440Fault element of sexual assault; communication not required for subjective consent
R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579Defence of honest but mistaken belief in communicated consent
R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801Consent considered differently at the act and intention stages
Foster v. R, 2020 NBCA 7, 61 C.R. (7th) 51Same distinction applied
R. v. Riley, 2019 NSCA 94, 450 D.L.R. (4th) 251Trial judges are responsible for properly instructing the jury even without objection
R. v. W.(D.), [1991] 1 SCR 742Three-step framework for credibility where accused and complainant give conflicting evidence
R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3Trier of fact may accept some, all or none of a witness's evidence
R. v. A.K., 2018 ONCA 567Same principle
Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)The curative proviso the Crown relied on
Criminal Code, R.S.C. 1985, c. C-46, s. 486.4Publication ban applying to this appeal
R. v. Ronald, 2019 ONCA 971Crown's burden under the curative proviso and use of implicit jury findings
R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823Curative proviso standard
R. v. T.(A.), 2015 ONCA 65, 124 O.R. (3d) 161Duty of trial judges to intervene on prejudicial Crown comments
R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641Two-step test for improper Crown closing
R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413Factors for assessing whether an improper address caused an unfair trial
R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401Failure to object is no unscalable barrier
Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385What a proper corrective instruction should do
R. v. Chacon-Perez, 2022 ONCA 3Assuming an accused will lie to secure acquittal offends the presumption of innocence
R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397Same principle from the Supreme Court
R. v. Shabbir, 2024 ONCA 750Juries may wrongly assume accused will lie; model corrective wording
R. v. D.B., 2024 ONCA 546, 172 O.R. (3d) 362Comparison case where the Crown argued the accused concocted testimony to walk away from charges
R. v. Hayles-Wilson, 2022 ONCA 790Improper motive-to-lie reasoning offends the presumption of innocence

Sources

R. v. C.L. - 2026 ONCA 791 - 2026-11-06

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.