Lack of Memory Does Not Equal Lack of Evidence

In November 2025, the Supreme Court rendered their decision in R. v. Rioux, 2025 SCC 34. The case dealt with how evidence from a complainant should be considered when there is a lack of memory due to intoxication.

There were two instances of alleged sexual assault in Rioux. The first was said to have taken place at a park, earlier in the day, and he was acquitted of the second assault in his home on the grounds that he had an honest but mistaken belief in consent. Only the first incident was the subject of the appeal.

The trial judge in Rioux had considered Rioux’s testimony about events at the park to be uncontested because the complainant said she believed she was drugged and had amnesia related to what took place at the park.

No drugging was proved and Rioux was not charged with administering a noxious substance.

The Supreme Court ruled that treating memory loss as a lack of evidence was incorrect. They discussed the need for a judge to grapple with circumstantial evidence in such cases. At para 50:

I agree with the majority in the Court of Appeal that the trial judge misapprehended and misapplied the law of evidence in the actus reus stage by requiring direct evidence from the complainant when the alleged assault occurred. He committed another error when he then also failed to consider the complainant’s circumstantial evidence when addressing her subjective consent and when determining the appellant’s guilt or innocence. His legal conclusions on these matters should have been based on the totality of the relevant, admissible, credible and reliable evidence over the full time, including the complainant’s evidence about her state of mind and physical state before, during and after any sexual activity that took place, as well as any other relevant temporally connected circumstantial evidence.

The Court further clarified how circumstantial evidence should be considered at para 60:

The law does not distinguish between circumstantial evidence and direct evidence in terms of weight or importance (Lederman, Fuerst and Stewart, at ¶2.94). Either type of evidence, or a combination of both, may be enough to meet the applicable burden of proof, depending on the facts of the case as determined by the finder of fact. That said, in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, this Court set out the principles to follow where the Crown’s case or an element of a criminal offence turns on circumstantial evidence. The inferences to be drawn from the circumstantial evidence depend on the nature of the evidence, the live issues and the theories of the parties. If after considering that evidence, satisfaction as to the existence of the elements of the offence is the only reasonable or rational inference, the trier of fact should draw the inference that the elements of the offence, and hence guilt, have been established beyond a reasonable doubt (see para. 41).

This case also dealt with the requirement that consent, being in the subjective mind of the complainant, must be contemporaneous to the impugned sexual activity. In cases, such as this, when the complainant was unable to give any direct evidence about her state of mind at the precise time of the sexual activity in the park, she was able to give circumstantial evidence about her physical state and experience of feeling drugged at the relevant time.

The Court then went on to clarify how a Court can deal with elements of a sexual assault offence when there is no direct evidence of the complainant’s state of mind at paras 71-72:

[71] The need for both subjective consent and a voluntary agreement contemporaneous with the sexual activity are cornerstone concepts for the offence of sexual assault. While central to what the Crown must prove, they do not prescribe or limit how they can be established. It is important not to conflate these substantive requirements with the principles of evidence governing their proof. For example, that subjective consent is personal to the complainant does not mean that only direct evidence from the complainant about her state of mind at that time can be relevant to subjective consent. Similarly, that subjective consent must exist at the time the sexual activity occurred does not mean that only evidence about that precise moment in time would be relevant to consent in fact or capacity to consent. [Emphasis in original]

[72]  Triers of fact should not blur the object of proof and how it may be established. As stated by Professor Lisa Dufraimont:

Subjectivity and contemporaneity are features of the absence of consent on the facts, which is the object of proof. They are not requirements limiting the evidence that goes to consent. One might, however, mistakenly conclude that if consent must be subjective and contemporaneous then the evidence that goes to consent must share those features.

(“Myth, Inference and Evidence in Sexual Assault Trials” (2019), 44 Queen’s L.J. 316, at p. 323)

This clarification also assists in determining the weight to be given to an accused’s evidence about surrounding circumstantial events. Additionally, despite consent being subjective to the complainant’s state of mind, it confirms that circumstantial evidence may be relevant to establishing subjective consent regardless of whether that evidence comes directly from the complainant or not. Though the accused cannot offer direct evidence about the complainant’s subject consent, his evidence about circumstantial, surrounding events can be taken into consideration when assessing whether proof beyond a reasonable doubt has been established though an accused’s ability to testify directly about the complainant’s subjective state of mind is still subject to limitations; Rioux at para 74.

The decision reinforces at para 85 that “a complainant’s evidence is not to be treated as unreliable merely because of a memory loss or blackout.” The decision did not directly deal with how a trial judge should assess a complainant’s perception of being drugged when there is no evidence of a drug being administered but did say that the trial judge needed to make a determination on whether he found sufficient evidence of drugging.

In this case, circumstantial evidence included that the complainant was being carried to the accused’s car “like a sack of potatoes” and was observed being carried in that manner by a municipal employee. The accused testified that the complainant had tripped on a rock and he was carrying her back to the car to practice “deadlifting” for his firefighter training. The accused testified that the complainant told the employee that she was fine and the complainant said the accused told her to say she was fine; Rioux, at para 16.

There was also external, circumstantial evidence that the complainant’s mother received an unexpected and incoherent phone call from the complainant during the time she spent in the park.

The main focus of the Rioux decision was to ensure that trial judges grapple with circumstantial evidence instead of treating memory loss as a void of evidence about the complainant’s subjective state of mind and to not accept the accused’s evidence as unchallenged or uncontradicted simply due to that memory loss.

This was a very close, split decision. The minority of the Supreme Court took issue with the judge’s reasons being “parsed” and violating the presumption that the trial judge applied the law properly.

In regard to the issue of drugging, the minority pointed out that the trial judge had grappled with the absence of evidence of drugging and that the Crown at trial had admitted that they were not pursuing a finding that the complainant had been drugged.