The 30 day appeal deadline is this Friday, August 22nd.

In addition to signing this petition which will be sent to the Canadian Judicial Council to investigate Justice Carroccia for judicial misconduct, you can also send a letter to the Ontario Attorney General asking for this decision to be fully reviewed and appealed. 

You can use the template below to create your letter:

Email to send to: Doug.Downey@ontario.ca

 Your Name
 Contact Info
 Date

The Honourable Doug Downey
 Attorney General of Ontario
 McMurtry-Scott Building
 720 Bay Street, 11th Floor
 Toronto, ON M7A 2S9

Subject: Urgent Request for Appeal of R. v. McLeod et al. (2025 ONSC 4319) and Action on Judicial Understanding of Sexual Assault Law

Dear Mr. Downey,

I am writing to respectfully request that the Crown Law Office – Criminal give urgent consideration to appealing the recent verdict in R. v. McLeod et al. (2025 ONSC 4319). In my view, the judgment contains several reviewable errors of law, including misapplication of Supreme Court and appellate authority, improper use of sexual history evidence, and reliance on prohibited myths and stereotypes. These errors, if left uncorrected, risk creating precedent that will undermine the proper application of consent law in Ontario.

The judgment in this case reveals multiple serious issues that warrant appellate review:

1. Misapplication and Selective Application of Case Law

R. v. Ewanchuk, [1999] 1 S.C.R. 330: The Supreme Court was unequivocal: myths and stereotypes about sexual assault are not permissible in assessing consent, and a complainant’s lack of resistance, compliance, or passivity does not constitute consent. These are, in fact, recognized indicators of consent vitiated by fear. In McLeod et al., the court treated compliance under intimidating circumstances as possible consent, directly contradicting Ewanchuk.

R. v. Kruk, 2024 SCC 7: The Court held that “common sense” assessments cannot override the requirement that findings be free from rape myths and stereotypes. Common sense may only be applied to reasonable inferences drawn from all of the evidence, provided those inferences are not tainted by prohibited reasoning. In McLeod et al., “common sense” was used to support the idea that the complainant’s lack of visible fear and continued presence in the room were consistent with consent – an approach Kruk explicitly cautions against.

R. v. S.B., 2017 SCC 16: This case addressed the use of “totality of conduct” evidence and the risks of circumventing s. 276 protections where no proper application has been brought. The Court of Appeal confirmed that such reasoning must not be used to indirectly admit prohibited sexual history evidence. In McLeod et al., S.B. was applied in precisely this prohibited manner: pre-assault sexual activity with one accused and alleged sexual attitude evidence were used to undermine the complainant’s credibility, despite no s. 276 application being before the court.

R. v. Nyznik, 2017 ONSC 4392: Justice Molloy cautioned against reliance on myths and stereotypes and against over-reliance on pre- and post-assault demeanour evidence. In McLeod et al., the court heavily emphasized the complainant’s demeanour before and after the alleged assaults without the necessary caution, using these observations to infer possible consent.

R. v. Al-Akhali, 2025 ONCA 229: The Court of Appeal warned against placing significant weight on pre-assault conduct such as flirtation, as it is not probative of consent to the sexual acts in question. In McLeod et al., pre-assault interactions (including alleged flirtation and earlier consensual activity) were used to support an inference of ongoing willingness, contrary to this caution.

R. v. Hoggard, 2024 ONCA 613: While this case found that the trial judge erred in permitting certain expert testimony on sexual assault trauma, it confirmed that judges must themselves possess a basic awareness of trauma responses, which extend beyond the “fight or flight” model to include freeze, fawn, and compliance behaviours. In McLeod et al., the reasoning reflects a lack of such awareness, interpreting the complainant’s composure, partial participation, and attempts to placate as potential evidence of consent, rather than as possible trauma responses – a misunderstanding that Hoggard indicates should not occur.

2. Failure to Properly Consider Consent Vitiated by Fear

Paragraphs [593-611] address the complainant’s consent being vitiated by fear. Despite the understanding that a complainant may feel as though she only has two choices: to comply or to be harmed, this concept was entirely ignored by Justice Carroccia. No consideration was given to possible intimidation and/or coercion with the complainant being outnumbered by 10 large athletes to her small frame. In addition, the complainant’s words such as saying the men were “joking” about inserting golf balls and golf clubs inside her were taken literally by Justice Carroccia, who believed that since the complainant described the men “joking” about this action, she would therefore not be fearful. 

Beyond this, she utilizes solely the accused’s and their Crown teammate witness’ evidence to speak against the complainant’s claims of non-consent and fear, such as their claims of the complainant being “upset” or “frustrated” because no one wanted to have sex with her. In contrast, the complainant uses these words to describe her experience only two days after the assault. She explained that it took her time to “process” her fear, however this explanation was used by Justice Carroccia against the complainant’s credibility, despite the fact that cases such as R v. DD speak to delays in reporting and also the understanding of fear. 

Supreme Court jurisprudence (Ewanchuk) confirms that fear-based compliance is not consent. The judge’s failure to apply this principle to the facts constitutes a significant error of law.

3. Improper Use of Sexual History and Sexual Attitude Evidence

The judgment repeatedly references the complainant’s consensual sexual activity with one accused earlier in the night and alleged flirting or sexual requests later, despite no s. 276 ruling admitting such evidence for a permissible purpose. These references were used to draw inferences about her likelihood to consent to the later alleged acts which is precisely the reasoning s. 276 was designed to prohibit.

4. Reliance on Myths and Stereotypes

The decision contains reasoning that aligns with discredited rape myths, including:

• Expecting physical resistance or visible fear to establish non-consent.
• Treating emotional composure or continued presence as indicators of consent.
• Using sexual history to infer ongoing willingness.

These approaches undermine Parliament’s intent and established appellate guidance, and they risk chilling the willingness of survivors to come forward.

5. Errors in Evidentiary Assessment

The verdict reveals a pattern of assessing the accused’s conduct and credibility in an artificially isolated manner, rather than in the context of the group dynamic in which the alleged assaults occurred. This approach disregards the principles of party liability and contextual evidence assessment, leading to findings that shielded the accused from the cumulative weight of the evidence.

• Group Context Ignored: Justice Carroccia evaluated each accused’s actions as if they were independent, often finding “reasonable doubt” by excluding consideration of what the other accused said or did. This fragmented approach is inconsistent with assessing credibility and intent in the context of a coordinated or opportunistic group assault.
• Shielding Through Isolated Analysis: Statements from one accused that could implicate another were disregarded on the basis that they were not direct evidence against that person. This effectively insulated each accused from incriminating statements made by co-accused, despite the fact that the Crown proceeded with a joint trial and the evidence formed part of the overall narrative of events.
• Use of Crown Witnesses Against the Complainant: Justice Carroccia relied heavily on the testimony of Crown-called witnesses who were teammates of the accused, without factoring in their potential bias or the Crown’s stated purpose in calling them. The Crown did not expect these witnesses to corroborate the complainant’s account; rather, they were called to place the accused in the room and to establish the sequence of events. Instead, their testimony was used primarily to undermine the complainant’s credibility, without any recognition of the likely loyalty and alignment with the accused.
• Improper Use of Consent Videos as Demeanour Evidence: The judgment uses post-assault “consent videos” as demeanour evidence to infer that consent was present. This is deeply problematic for several reasons:
  -The videos were filmed while the complainant was surrounded by multiple men, creating an inherently coercive environment in which outward compliance is meaningless as proof of consent.
  - The complainant testified that she did not recall the videos being filmed, but upon viewing them, noted she appeared to be wiping her eyes and looked as though she was crying. Multiple accused and witnesses confirmed she was crying at points that night.
  - The judge dismissed the complainant’s interpretation of her own visible distress as “speculative,” without addressing corroborating evidence that she had been seen crying.
  - Despite the complainant stating “yes, I’m okay” and “yes, it was all consensual” in the videos, a male voice can be heard prompting her with “Say it” and “What else,” indicating these statements were being directed rather than voluntarily offered.
  - The judge treated the complainant’s smiling in the video as evidence she was “okay” in her own mind, without considering that smiling can be a trauma response, a survival strategy, or an attempt to placate those in a position of power over her.

By using these videos to support an inference of consent, the court conflated composure and forced participation with free agreement, in direct contradiction to the principles set out in Ewanchuk.

This approach to the evidence systematically disadvantaged the complainant while disproportionately insulating the accused from adverse inferences that could have been drawn from the totality of the circumstances. It also fails to reflect the social and evidentiary realities of sexual assaults involving multiple accused, where group dynamics, peer pressure, and collective behaviour are highly relevant to assessing both consent and credibility.

Systemic Implications

This verdict has implications well beyond the complainant in this case. If left unchallenged, it risks embedding in Ontario jurisprudence a permissive approach to sexual assault where:

• Compliance under intimidation is treated as proof of consent.
• s. 276 protections are weakened through “totality of conduct” reasoning.
• Trauma-informed understanding is absent from credibility analysis.
• Consent videos being used as face-value demeanour evidence to infer consent.
• “Joking” comments about weapon use being seen as non-threatening.
• In cases of group assault, credibility is effectively determined by majority rule – where the accused and their aligned witnesses (often close associates such as teammates) are treated as inherently more credible than the complainant simply because there are more of them.
• The reasoning in this verdict shows that the court was prepared to accept as true statements about the complainant’s words or conduct merely because several accused and teammate witnesses repeated them, without sufficiently weighing the potential for collusion, shared interest, or bias inherent in such relationships.

Such precedent would erode public trust, discourage reporting, and weaken the very consent protections Parliament has built over decades.

Requested Action

I respectfully request that your office give urgent consideration to filing a notice of appeal before the appeal deadline of August 22nd, 2025.

Given the statutory deadline for filing a notice of appeal, I urge the Crown Law Office – Criminal to review the attached concerns promptly. In my respectful submission, this case presents significant issues of law and principle that merit appellate intervention to safeguard both the integrity of sexual assault law and the consistency of its application across Ontario courts.

Sincerely,
 Your Name