COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.S., 2025 ONCA 125[^1]

DATE: 20250219

DOCKET: COA-24-CR-0393

van Rensburg, Huscroft and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

J.S.

Appellant

Sherif M. Foda, for the appellant

Jessica Smith Joy, for the respondent

Heard: February 14, 2024

On appeal from the conviction entered on June 8, 2023 by Justice Michael K. Wendl of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals from conviction on one count of indecent assault committed against his stepson.[^2] The conduct constituting the offence took place between 1976 and 1979, when the complainant was between the ages of 11 and 14 years.

[2] The appellant raised two grounds of appeal. First, he argued that the trial judge engaged in uneven scrutiny of the evidence of the defence and the Crown. Second, he argued that the reasons were insufficient, particularly on the issue of the reliability of the complainant’s evidence.

[3] After hearing submissions on behalf of the appellant, we did not call on the Crown to respond, and dismissed the appeal with reasons to follow. These are our reasons.

(1) The trial judge did not engage in uneven scrutiny of the evidence

[4] The appellant argues that the trial judge was unduly harsh in his consideration of the appellant’s evidence and failed to consider weaknesses in the Crown’s case, in particular, in the evidence of the complainant. We disagree.

[5] Uneven scrutiny is a notoriously difficult ground of appeal. To succeed on this ground, an appellant must point to something that shows that the trial judge applied different standards in assessing the Crown and defence evidence: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99.

[6] The appellant pointed to three aspects of the trial judge’s reasons in support of the uneven scrutiny argument. We are not persuaded that any of these areas support this argument.

[7] First, the appellant argued there was error in the trial judge’s treatment of evidence led by the defence that the appellant had a history of sexually offending against girls, and that the asserted error is indicative of uneven scrutiny. The appellant argued at trial that his history of sexually offending against girls was evidence that he was not the type of person to sexually offend against boys, and therefore had exculpatory value in relation to the charge involving his stepson. There were two bodies of evidence relied on by the defence in support of this argument: the appellant’s criminal record (including the details of specific offences) and the appellant’s testimony that he was not sexually interested in boys. The appellant argued that the trial judge failed to give exculpatory effect to the appellant’s own evidence that he was not sexually interested in boys.

[8] We do not accept this submission. The trial judge’s reasoning on this issue comes after the portion of the reasons where the trial judge explained why he rejected the credibility of the appellant’s evidence. The trial judge’s treatment of the “no sexual interest in boys” evidence was as follows. He recognized that there were two bodies of evidence on this issue – the criminal record and the appellant’s own assertions in his testimony – but gave no weight to the first and rejected the second. The trial judge gave no weight to the criminal record on the basis that, while the appellant’s history of offending against girls showed a sexual interest in girls, it had no probative value in showing an absence of sexual interest in boys. The trial judge also rejected the appellant’s own evidence that he was not sexually interested in boys based on the reasons he had already explained for rejecting the appellant’s credibility more generally.

[9] We see no error in this reasoning by the trial judge and it does not form a basis to find uneven scrutiny of the evidence.

[10] Second, the appellant argues that the trial judge erred in rejecting his evidence about why he removed the complainant’s underwear as making “no sense” and being “implausible”. The appellant argues that there was nothing implausible about this evidence. He also argues that his evidence on this issue was to some degree corroborated by the complainant’s evidence that the appellant would sometimes complain about the complainant sleeping in underwear.

[11] We see no error here or uneven scrutiny. The aspect of the appellant’s evidence that the trial judge did not accept was the purported reason that the appellant gave for removing the underwear, not the fact that it happened. Part of the complainant’s account of the abuse was that the appellant pulled down his underwear and/or pyjamas to commit the sexual acts. But the complainant denied that the appellant had ever removed his underwear separate from acts of sexual abuse. The appellant’s evidence about removing the complainant’s underwear because it was “unhealthy” and “unhygienic” to sleep in underwear was clearly offered as an exculpatory reason to have removed the complainant’s underwear. The Crown challenged this explanation in cross-examination.

[12] The trial judge was entitled to scrutinize and make findings on the plausibility of the reason for removing the complainant’s underwear proffered by the appellant in his testimony. The findings made by the trial judge were open to him on the record and do not support a conclusion of uneven scrutiny.

[13] Counsel for the appellant also suggested in submissions that the trial judge’s reasoning in not accepting the appellant’s evidence about why he removed the complainant’s underwear somehow relied on stereotypical assumptions. We reject this characterization. The trial judge’s findings on this issue were findings based on the evidence at trial, not on assumptions: R. v. Kruk, 2024 SCC 7, at paras. 94‑95.

[14] Third, the appellant argues that the trial judge was unduly forgiving in his treatment of the complainant’s evidence about when he told his mother about the sexual abuse by the appellant. The appellant argues that the complainant’s evidence was inconsistent on this point.

[15] The complainant testified that he told his mother about the abuse when he was 14, which would have been in 1979. However, he also related the timing of his disclosure of the abuse to his mother to when the appellant was alleged to have engaged in sexual offences against other children, which the defence argued was in 1984, based on other evidence. Trial counsel for the appellant (not Mr. Foda) cross-examined the complainant with a view to suggesting that his first disclosure to his mother was when he was 18 years old, several years after the alleged abuse ended. The complainant rejected this suggestion and maintained that he made the disclosure to his mother when he was 14. In re-examination, the complainant explained that after he disclosed to his mother, and the appellant was kicked out of their house, he (the complainant) was told that he could not get therapy or speak to the police. He “had no idea how to process” the sexual abuse, and as a result, he “just stopped thinking about it”, until it came back to him again at age 18.

[16] Given the complainant’s rejection of the suggestion that he first disclosure the abuse to his mother when he was 18 years old, it is not clear that there was an inconsistency in his evidence about the timing of disclosure. But even if there was inconsistency in relation to the timing of disclosure, it is difficult to characterize it as a material inconsistency in a case where the complainant was testifying about events when he was a child that happened over 40 years previously: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134. In any event, it was for the trial judge to decide whether he found an inconsistency in the complainant’s evidence about when he reported the abuse to his mother. Although the trial judge did not expressly address the timing issue in his reasons, he was alive to the issue and engaged with trial counsel on the issue during submissions.

[17] Considering all of these arguments together, we are not persuaded that the trial judge engaged in uneven scrutiny of the Crown and defence evidence.

(2) The reasons were sufficient

[18] The appellant argued that the trial judge did not address the reliability of the complainant’s evidence in the reasons for judgment, as distinct from credibility. He argues that, as a result, the reasons are insufficient to permit meaningful appellate review. We disagree.

[19] The issue of the reliability of the complainant’s evidence was raised by the defence in submissions at trial. Discussions between trial counsel and the trial judge during submissions make clear that the trial judge understood the issue. While it would have been preferable if the trial judge had expressly addressed reliability in his reasons, his reasons as a whole make clear that he accepted that the complainant’s evidence was both credible and reliable: G.F., at para. 82.

Disposition

[20] The appeal is dismissed.

“K. van Rensburg J.A.”

“Grant Huscroft J.A.”

“J. Copeland J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46.

[^2]: The appellant abandoned his appeal against sentence in his factum.