COURT OF APPEAL FOR ONTARIO
Simmons, George and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
R.W.
Appellant
Sonya Shikhman and Katheryn Doyle, for the appellant
Eunwoo Lee, for the respondent
Heard and released orally: February 24, 2025
On appeal from the conviction entered on August 25, 2022, and the sentence imposed on February 8, 2023, by Justice Leslie C. Pringle of the Ontario Court of Justice.
REASONS FOR DECISION
1Despite many inconsistencies in the complainant’s evidence concerning dates, times and other details, the trial judge accepted the complainant’s evidence that he was sexually assaulted and rejected the appellant’s denial and the defence evidence concerning lack of opportunity.
2The trial judge relied on two key factors. First, that a seven-year-old child described the appellant’s sucking his “soo-soo”, referring to his penis. Second, that a seven-year-old child described putting on two pairs of pants in order to guard against being sexually assaulted on a second occasion.
3We reject the appellant’s submissions that the trial judge misapplied R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, misapplied R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) or ignored material inconsistencies. The trial judge’s reasons show that “she grappled with the substance of the live issues on the trial”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. Her findings of credibility are entitled to deference on appeal.
4The conviction appeal is dismissed.
5We are not satisfied that the trial judge treated the sentencing range as binding or made any other error in principle in imposing sentence.
6Leave to appeal is granted, but the sentence appeal is dismissed.
“Janet Simmons J.A.”
“J. George J.A.”
“R. Pomerance J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.