Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Katja Anokhina on Unsplash.
📝 On Friday, November 7, 2025, the Supreme Court of Canada will release its decision in R. v. Rioux. At issue is how trial judges should evaluate consent and capacity in sexual assault cases when a complainant cannot recall what happened.
⛏️ On October 31, the Supreme Court released its decision in Quebec (Attorney General) v. Senneville, 2025 SCC 33. The Court, in a 5:4 split, struck down the mandatory minimum sentences for possession and accessing child pornography, ruling they violated section 12 of the Charter (protection against cruel and unusual punishment).
🎯 Only 25% of Fantasy Courts players correctly predicted the result.
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the case below. A recap of the last decision predicted follows.
Case to Predict: Assessing Consent When Memory Is Lost
As of right appeal from R. c. Rioux, 2024 QCCA 657
What Happened?
Mr. Rioux was acquitted at trial after the judge found his testimony about a sexual encounter in a park raised a reasonable doubt. The complainant had no memory of the incident.
The Quebec Court of Appeal majority overturned that acquittal, ordering a new trial for one of two events, holding that the trial judge failed to consider the full circumstantial evidence of incapacity. One judge dissented, saying the trial judge had in fact weighed all the evidence and believed the accused.
The Supreme Court will now decide whether the majority of the Court of Appeal erred in law and, if there was an error, whether it truly affected the verdict.
What Was Argued at the SCC?
Appellant: Rioux argued that the trial judge correctly considered all relevant evidence, including the complainant’s amnesia, and was entitled to rely on his credible testimony. They say the appellate court went too far in re-weighing evidence, and that any alleged error did not affect the outcome since the judge clearly believed the accused.
Respondent: The Crown maintains the trial judge ignored critical circumstantial evidence, such as the complainant’s extreme intoxication, memory loss, and Rioux’s own recorded comments about her state. It argues that the judge’s narrow focus on direct proof led him to wrongly exclude relevant evidence about capacity to consent, amounting to a legal error justifying a new trial.
What Else Should You Know Before Making a Prediction?
This case revisits questions the Supreme Court has confronted before, especially in R. v. Ewanchuk and R. v. G.F., about how trial judges must reason through issues of consent and incapacity. It will clarify when a complainant’s memory loss can still support findings of incapacity through circumstantial evidence, and how appellate courts should review acquittals in such sensitive contexts. Because the decision arises “as of right” due to a dissent at the Quebec Court of Appeal, it’s also a key test of how far the SCC will go in reviewing findings that hinge on a trial judge’s assessment of credibility and doubt.
This year, most as-of-right appeals have been dismissed. I looked at seven from 2025, and six were dismissed. One that was allowed, however, was R. v. Kwon, 2025 SCC 11, which also dealt with consent. The present case has been under reserve since January. I’m leaning towards appeal allowed, but I expect it to be a split.
Previous Case Recap: Attorney General of Quebec v. Senneville
Quebec (Attorney General) v. Senneville, 2025 SCC 33
Held (5:4): Appeal dismissed. The mandatory minimum sentences for possession and accessing child sexual abuse materials violate s. 12 of the Charter.
Key points:
- Mandatory minimums can be unconstitutional if they would impose a grossly disproportionate sentence in a reasonably foreseeable case, such as an 18-year-old who briefly keeps an intimate image sent by a 17-year-old partner.
- The possibility of using reasonably foreseeable scenarios in the analysis under s. 12 of the Charter is essential to the rule of law. Constitutional certainty for all, independent of one’s ability to bring a legal proceeding, is paramount to the Charter and is essential to ensure true access to justice.
- The dissent, led by Chief Justice Wagner, would have upheld the provisions, warning against striking down Parliament’s sentencing choices based on rare hypotheticals.
📊 Tough one. Only 25% of Fantasy Courts players predicted correctly.
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-Tom Slade