R. v. Al-Akhali, 2025 ONCA 229, March 21, 2025, at paragraphs 52 and 54 to 56:

Complainants sometimes testify that they did not or would not have consented because doing so would be inconsistent with their beliefs, attitudes, practices, and preferences concerning sexual activity. I refer to this as sexual attitude evidence. It is sometimes the “best evidence” of lack of consent because it offers a window into complainants’ subjective state of mind at the time of the sexual activity…Even if complainants cannot recall that activity, it is circumstantial evidence that can support inferences that they did not consent or were incapable of consenting.

Care is needed because people do not always do what they say they would have done. For instance, “intoxication can lead people to do things and make choices they would not have made if they were sober.”

But courts must also guard against “dangerous speculation, based on stereotypical notions of how drunken, forgetful women are likely to behave.” …Courts neither presume that intoxicated people consented nor assume that they are promiscuous, willing to have sex anywhere with anyone, to blame for harm they suffer, or more likely to lie about being sexually assaulted.

Courts can achieve both goals by considering all the evidence and applying credibility and reliability assessment principles…Sexual attitude evidence thus gains force if other evidence confirms it and loses force if other evidence contradicts it.