Video Evidence Undermines Credibility Findings

Joseph Neuberger & Alper Yilmaz

In R. v. Aguilar-Lopez, 2025 ONSC 6074, the Ontario Superior Court of Justice granted an application to reopen a sexual assault trial and declared a mistrial. Video evidence had emerged that appeared to contradict the trial judge’s findings on consent directly. The decision engages several legal issues: the role of dispositional evidence in establishing whether consent was given, whether surreptitious recordings can vitiate consent to sexual activity, and the power of digital evidence to uncover false allegations.

When Fresh Evidence Challenges a Credibility-Based Conviction

Mr. Aguilar-Lopez was convicted of sexual assault in December 2024. The complainant testified that she awoke confused and without any memory of consenting, consistently maintaining that she would never have agreed to the sexual activity. The trial judge accepted her evidence that she “would not have consented to sexual activity with the accused at any time, under any circumstances” (at para 3).  The accused did not testify at trial.

Following the conviction but before sentencing, the accused retained new counsel and brought an application to reopen the trial. In support of that application, the defence sought to introduce five video clips capturing portions of the sexual activity at issue. These clips had not been tendered at the original trial.

What the Videos Showed

The trial judge reviewed the video footage carefully and described the complainant as “an active participant engaged in consensual sexual activity.” The clips depicted the complainant initiating and sustaining sexual intercourse, repositioning herself, and engaging in physical closeness with the accused afterward. There was no visual indication of intoxication to the point of incapacity. The footage directly undermined the finding that the complainant would never have consented to sexual activity with the accused. To the extent the conviction rested on circumstantial and dispositional evidence (the complainant’s testimony about what she would or would not have done), the video clips were a powerful form of rebuttal, capturing a version of events wholly incompatible with the complainant’s testimony.

The videos also supported a defence position the trial judge had rejected: that the disinhibiting effects of alcohol may have led the complainant to consent. Importantly, incapacity was not the theory on which the Crown had prosecuted the case.

The Fresh Evidence Test and the Question of Due Diligence

The application to reopen was governed by the Palmer test, which asks whether the proposed evidence is admissible, sufficiently cogent to have affected the verdict, and whether there is a satisfactory explanation for its failure to be led at trial. Where the evidence was available but not led for tactical reasons, the Ontario Court of Appeal has held that an additional degree of cogency is required: the evidence must provide a “strong reason to doubt the factual accuracy of the verdict.”

The accused conceded a lack of due diligence. No affidavit was filed from prior counsel explaining whether the videos were disclosed or whether a tactical decision was made not to use them. The trial judge was candid about the difficulty this created, describing the record as “very thin” and “unsatisfactory,” and acknowledging serious concerns that the application was an attempt to reverse a failed tactical gamble.

Despite these concerns, the court concluded “with great reluctance” that the video evidence met the heightened cogency threshold. The footage appeared to show what the complainant said would never have happened. In those circumstances, the interests of justice required reopening.

Can a Surreptitious Recording Vitiate Consent?

The Crown advanced an alternative theory of liability: even if the videos showed apparent consent, that consent was vitiated by fraud because the recordings were made without the complainant’s knowledge. The Crown analogized to the law on condom use following R. v. Kirkpatrick, 2022 SCC 33, arguing that a surreptitious recording goes to the nature and quality of the sexual act itself.

Justice Penman declined to treat this as an alternate route to liability on the evidence before him. He noted that this is a new and developing area of law. The Supreme Court of Canada had the opportunity to address the issue in R. v. A.E., 2022 SCC 4, but declined to do so. The most recent Ontario authority on point is R. v. Napper, 2024 ONSC 5451, where the trial judge rejected the Crown’s submission and held that consent relates to the physical sexual act itself, not to collateral circumstances such as whether the activity was being recorded. In Napper, the court reasoned that the fraud framework under s. 265(3)(c) of the Criminal Code, requiring deception and deprivation or risk of deprivation, is the more appropriate analytical tool for cases involving secret recordings.

This issue is far from settled. Whether surreptitious recording can vitiate consent to sexual activity is a question that will almost certainly be litigated further, and the new trial in this case may provide the Crown an opportunity to advance that argument on a full evidentiary record.

Why a Mistrial Was the Only Option

Having made strong credibility findings in favour of the complainant and adverse findings against the accused, the judge concluded that reassessing credibility in light of the new evidence would create a reasonable apprehension that prior findings would taint the result. The only fair course was to start over before a different trier of fact.

Looking Forward

Aguilar-Lopez was decided shortly before the Supreme Court of Canada’s decision in R. v. Rioux, 2025 SCC 2, which held that consent must be assessed on the totality of the evidence, including a complainant’s circumstantial testimony about her own disposition. Trial judges are now required to consider this evidence. But that expanded evidentiary role carries a corresponding vulnerability: where findings of fact rest on what a complainant says she would or would not have done, they are open to challenge by evidence that tells a different story. Here, the video evidence was so fundamentally at odds with the verdict that it had to be admitted, despite a complete absence of explanation for why it was not led at trial, and despite the court’s serious concerns that the application was an attempt to reverse a failed tactical decision. The forthcoming new trial will unfold against the backdrop of both Rioux and the developing law on surreptitious recordings. It is a case worth watching closely.

It is also worth noting that evidence of what a complainant would or would not have done is ripe for misapplication at trial and detracts from the truth-seeking function of the trial.  What should remain the focus is what were the actions of the complainant and not attitudinal evidence that is hard to challenge in many cases.  An accused generally cannot marshal evidence of prior sexual history, but one can argue that if a complainant testifies that she would not have engaged in sex with the accused for some reason – for example – not a one-night stand type of person – the door opens to challenge this character evidence with prior sexual history evidence, if such evidence is available for the defence.  Fortunately, for this accused, he had videos that clearly undermined the complainant’s credibility.