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R v Rioux, 2025 SCC 34 [Rioux] was crowned the “Raspberry Award” for being the worst Supreme Court of Canada (“SCC”) decision of 2025.1 While the award might be in jest, the implications of Rioux certainly are not, especially for the increased possibility of the reversal of an acquittal. In my analysis, I suggest that the majority’s decision in Rioux is contrary to the SCC’s deference considerations when determining an error of law. I also suggest that the SCC has expanded the concept of error of law.
Facts
In a lakeside park in Quebec, Mr. Rioux met the complainant for an evening picnic (Rioux, para 5). After drinking alcohol, the complainant claimed that she lost control of her body and suffered partial amnesia (Rioux, para 6). They became physically flirtatious, and, eventually, Mr. Rioux touched her sexually (Rioux, paras 11–12). After driving the complainant to his home, he performed various sexual acts with the complainant (Rioux, paras 18–19). Mr. Rioux was charged with sexual assault (Rioux, para 1).
Judicial History
Court of Quebec
The trial judge found Mr. Rioux’s testimony of the complaint’s consent and capacity to consent in the park was credible and probative (Rioux, paras 28–30, 37). Consequently, for the events in the park, the actus reus of sexual assault was not established beyond a reasonable doubt (Rioux, para 31). However, at Mr. Rioux’s home, the trial judge found that the complainant’s inability to control her body demonstrated that she lacked the capacity to consent (Rioux, para 32). Therefore, the actus reus of sexual assault was established at Mr. Rioux’s home (Rioux, para 35). Based on a finding of Mr. Rioux’s credibility, however, the trial judge held that Mr. Rioux had an honest but mistaken belief in the complainant’s consent and capacity to consent (Rioux, para 35). Mr. Rioux was thus acquitted (Rioux, para 38).
Court of Appeal for Quebec
The majority at the Court of Appeal for Quebec held that the trial judge made several errors of law in his assessment of the evidence, such as using Mr. Rioux’s testimony as direct evidence of the complainant’s consent, and failing to consider substantial amounts of circumstantial evidence (Rioux, paras 39–41). These errors were material and could have led to a different verdict (Rioux, para 41). Therefore, the majority ordered a new trial (Rioux, para 41). The dissent, however, determined that the trial judge properly assessed the evidence and would have dismissed the appeal (Rioux, para 42).
Issue
The issue before the SCC was whether the trial judge made errors of law of sufficient seriousness to overturn Mr. Rioux’s acquittal, specifically in the trial judge’s consideration of the evidence to determine consent and capacity to consent (Rioux, paras 48–49).
Decision
Majority
In agreement with the Court of Appeal for Quebec, Martin J. held that the trial judge incorrectly required direct evidence from the complainant to determine her consent and capacity to consent (Rioux, para 100). The trial judge also failed to consider the complainant’s circumstantial evidence, which contradicted Mr. Rioux’s testimony (Rioux, para 100). Additionally, the trial judge’s reliance on Mr. Rioux’s testimony as direct evidence of the complainant’s subjective consent was in error (Rioux, paras 124–125). In effect, the trial judge considered the evidence “in silos,” which caused the trial judge to erroneously consider the evidence from the park and Mr. Rioux’s home separately, rather than together (Rioux, paras 121–122).
In sum, Martin J. determined that the trial judge “misapprehended and misapplied the law of evidence,” failed to apply “the correct legal test for principles of proof,” and made “multiple compounding legal errors” (Rioux, paras 50, 114, 135). These errors “tainted” the credibility assessment of Mr. Rioux and thus caused Martin J. to reject Mr. Rioux’s claim of an honest but mistaken belief in consent (Rioux, paras 135–136). Ultimately, these errors materially affected the decision to acquit, and Martin J. dismissed the appeal (Rioux, paras 142, 146).
Dissent
Writing for the dissent, Wagner C.J. determined that the trial judge considered all of the relevant evidence, including contradictory circumstantial evidence (Rioux, paras 175–180). The trial judge did not rely on Mr. Rioux’s testimony as direct evidence of the complainant’s subjective consent; instead, the lack of direct evidence from the complainant compelled the trial judge to rely on circumstantial evidence (Rioux, paras 181–183).
Contrary to the majority’s position, Wagner C.J. held that the trial judge did not make an error of law in his consideration of the evidence (Rioux, para 202). Instead, the majority’s criticism of the trial judge’s assessment of evidence was “under the pretext of an error of law” and not appropriate for an appellate court (Rioux, para 198). Therefore, the credibility assessment of Mr. Rioux should not have been altered, and the trial judge’s acquittal should be restored (Rioux, paras 186–188, 202).
Analysis
The reasonableness of an assessment of the evidence is not an error of law
The SCC has clarified what is, and what is not, an error of law (a “question of law”) sufficient to ground a right to appeal an acquittal under s. 676(1)(a) of the Criminal Code, RSC 1985, c C-46 [Code]. In R v JMH, 2011 SCC 45 [JMH], the SCC identified four non-exhaustive situations that constitute a legal error (JMH, paras 24–39). The situation in question in Rioux is the fourth error identified in JMH: a “failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence” (JMH, para 31).
However, the SCC has limited the use of this fourth error. In JMH, the SCC cautioned that “[i]t is a misapplication […] to apply it whenever a trial judge fails to deal with each piece of evidence or record each piece of evidence and his or her assessment of it” (JMH, para 31). Further, McLachlin J., as she was then, in R v B(G), 1990 CanLII 115 (SCC) [B(G)], writing about a trial judge’s assessment of the evidence, stated that “the law is clear that doubts about the reasonableness of the trial judge's assessment of the evidence do not constitute questions of law alone, and hence cannot support an appeal from acquittal” (B(G), 79, emphasis added). In addition, writing more generally on trial deference, McLachlin J. (as she was then) in R v Burns, 1994 CanLII 127 (SCC) [Burns] stated that “a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points,” and thus a trial judge “is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence” (Burns, 664).
The majority’s decision criticizes the reasonableness of the assessment of evidence
I argue that the majority’s statement is, in essence, a criticism of the way the trial judge assessed the circumstantial evidence—that is, the reasonableness of his assessment—rather than a demonstration that the fourth error in JMH was satisfied. When the majority determined that the trial judge assessed the evidence as “in silos” and suggested that the trial judge “should have proceeded on the basis that all the complainant’s evidence of what took place in the park and later at the appellant’s home was potentially relevant,” the majority seems to conflate the way the trial judge considered the evidence with a lack of consideration of evidence (Rioux, para 121). By suggesting another way the trial judge “should have proceeded,” the majority is, in effect, criticizing the reasonableness of the trial judge’s use of the evidence, rather than his lack of consideration (Rioux, para 121). The trial judge, in fact, did record the circumstantial evidence in his decision, both in the background and analysis stage (Rioux, paras 176–177, 179). But based on the evidence, he decided that Mr. Rioux’s testimony was credible (Rioux, para 180). Consequently, the majority needed to focus its criticism on the way the trial judge assessed the evidence to show a legal error (Rioux, para 122). This approach to showing a legal error runs contrary to the SCC’s teachings in B(G), where “doubts about the reasonableness of the trial judge's assessment of the evidence do not constitute questions of law alone” (B(G), 79).
The majority’s criticism of the trial judge’s consideration of the evidence is also contrary to the SCC’s warnings in JMH: to criticize the trial judge for “siloing” the evidence does not appear substantially different than a failure to “deal with each piece of evidence,” which, as JMH teaches, is not a legal error (JMH, para 31). In addition, the majority seems to impose an undue standard upon the trial judge when holding that the trial judge failed to demonstrate he had considered evidence from both the encounters in the park and in Mr. Rioux’s home (Rioux, paras 121–122). Imposing this standard would require trial judges to not only demonstrate they knew the law of evidence but also to demonstrate they had considered all evidence—and Burns is clear that this is not the standard for trial judges (Burns, para 664).
Furthermore, this implicit standard on trial judges to show knowledge of the law of evidence is contrary to GF, where Karakatsanis J. stated that “‘[t]rial judges are presumed to know the law with which they work day in and day out’ […]. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles” (R v GF, 2021 SCC 20, para 74, quoting Burns, 664). Based on this presumption, the SCC in R v Hodgson, 2024 SCC 25 [Hodgson] wrote that “[t]he trial judge is presumed to know the law and need not state reasons for every inference that was or was not drawn” (Hodgson, para 68).
Therefore, I suggest that Rioux should be interpreted as an expansion of the SCC’s concept of error of law, rather than as an application of the pre-established fourth error of law from JMH. Note, however, that Cromwell J. stated that the errors of law enumerated in JMH were not exhaustive; he thus left open the possibility of expansion for the concept of error of law (JMH, para 24). We accordingly see this possibility of expansion exercised in Rioux. Perhaps another category of error of law may be recognized by the SCC in a future decision. However, I underscore what Martin J. wrote in Hodgson: “Allowing the Crown’s restricted right of appeal to expand beyond its scope would undermine the provision’s [s. 676(1) of the Code] protection against wrongful convictions and double jeopardy” (Hodgson, para 31). Judicial accuracy must be balanced with judicial finality, especially in situations of appeals of acquittals. The challenge, then, is finding the correct balance—and Rioux shows where the SCC currently stands.
- Peter Sankoff, “Top Cases Awards” (9 Jan 2026), online (blog): <criminaldefenceessentials.com> [https://criminaldefenceessentials.com/top-cases-awards/?fbclid=IwY2xjawQOuj1leHRuA2FlbQIxMABicmlkETFNU0RaUlBvcE5pQkg0NXhMc3J0YwZhcHBfaWQQMjIyMDM5MTc4ODIwMDg5MgABHgbhMG4YgoKTZS8KIWjaG9Z_FUgZlVk_O8oUtFUu_6QnhjGP2nXBdDw5NkRw_aem_X2MUjDcqUFH87KkmwNlqPA].
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