Court of Appeal for Ontario
Judges: Fairburn A.C.J.O., Zarnett and Wilson JJ.A.
Between
His Majesty the King Respondent
and
Chad Storey Appellant
Counsel:
- Megan Savard and Riaz Sayani, for the appellant
- Jennifer Epstein, for the respondent
Heard: February 20, 2025
On appeal from: The convictions entered on September 30, 2020, and the sentence imposed on July 5, 2021 by Justice Clyde Smith of the Superior Court of Justice, with reasons reported at 2021 ONSC 1760.
Opinion of the Court: Wilson J.A.
A. Overview
1The appellant challenges his convictions for sexual interference, possession of child pornography, making sexually explicit material available to a child, and assault. He says that the trial judge failed to properly consider expert evidence about the nature and extent of his cognitive disability. He argues that as a result, the trial judge erroneously admitted statements the appellant gave to the police and failed to account for his disability when assessing his credibility. He submits that after accepting the expert's opinion, the trial judge then ignored it. He asks that this court order a new trial.
2The appellant also seeks leave to appeal his sentence. He argues that the trial judge erred in his analysis of whether the appellant's disability attenuated his moral responsibility. He further submits that the trial judge did not properly consider the effect of COVID-19 on his sentence. He asks that this court grant him leave to appeal his sentence and shorten his sentence.
3I would dismiss the conviction appeal but allow the sentence appeal. The trial judge failed to recognize that the appellant's intellectual disability attenuated his moral blameworthiness even though it did not prevent him from understanding the consequences of his behaviour entirely. As well, the trial judge refused to account for the harsh conditions of COVID-19 at sentencing, finding that the appellant would have been incarcerated during the pandemic no matter what. Both of those conclusions reflect errors in principle.
4In the remainder of this overview, I briefly set out the background facts that underlie the appeal as a whole. I will then address the issues raised: (a) the admissibility of the appellant's statements; (b) the manner in which the trial judge considered the expert evidence on his cognitive disability; (c) the trial judge's assessment of his credibility; and, finally, (d) the sentence the trial judge imposed. I provide additional relevant factual background in my discussion of each of those issues.
5The charges of sexual interference and assault arose from the appellant's relationship with one complainant, H.W. The charges of child pornography and making sexually explicit material available to a child arose from a relationship over social media with another complainant, A.D.
6The first complainant, H.W., was 13 years old and in grade eight at the time of these events. The appellant was 21. They met at a skateboard park in the fall of 2016. They started messaging each other on social media and the appellant would meet H.W. after school. They had sexual relations about a month after they first met. H.W. asserted that the appellant was aware from the outset that she was 13. He denied that.
7In early December 2016, H.W. and the appellant had a fight and she slapped him. He responded by punching and injuring her. She told her family what had happened, and her mother took her to the police. H.W. told the police that the appellant had assaulted her after an argument between them turned into a physical confrontation. During the ensuing investigation, H.W. told the police that she and the appellant had a relationship that had involved sexual intercourse on several occasions, as well as oral sex. The appellant was arrested on December 6, 2016.
8The second complainant, A.D., was a friend of H.W.'s. The appellant sent a picture of his erect penis to A.D., and she sent him nude photos of herself, which he downloaded to his computer. At the time, A.D. was 13 years old.
9The appellant provided two statements to the police: one on December 6, 2016, after he was arrested on the charges related to H.W., and another on January 4, 2017, after he was arrested on the charges related to A.D. The trial judge admitted both statements, and the first issue the appellant raises before this court relate to his decision to do so.
B. The Admissibility of the Statements
(1) Additional Factual Background
(a) The Police Interviews
10Before each interview, the police advised the appellant of the charges he was facing, told him that he had the right to speak to a lawyer, and asked if he wanted to do so. They also asked if he understood his right to consult counsel, and that he was entitled to free advice from a Legal Aid lawyer. The appellant declined to speak to a lawyer on each occasion. The first time, when one of the officers, Sgt. McGrath, asked whether the appellant understood the charges, he responded "yeah, but she was harassing me", and then declined to speak to a lawyer because he had "been through this before". The second time, the appellant again declined to consult counsel, and said "I will at court".
(i) The first interview: the appellant admits to a sexual relationship with H.W.
11The appellant acknowledged having a sexual relationship with H.W., knowing that she was 13, several times. Early in the interview, Sgt. McGrath asked him whether he and H.W. had consensual sex. The appellant responded affirmatively and explained that "she wanted … to know what an adult would be like".
Sgt. McGrath: And then the relationship am I right it involves you guys have had consensual sex a few times.
Mr. Storey: Mm hm ya.
Sgt. McGrath: She never said no.
Mr. Storey: Okay.
Sgt. McGrath: Right no I'm asking you.
Mr. Storey: Oh ya ya ya she we had it we had it once or twice but I used a condom.
Sgt. McGrath: 'Kay.
Mr. Storey: So this was good.
Sgt. McGrath: Good ya man.
Mr. Storey: Because she she wanted she she wanted to know what the like what an adult would be like.
12Sgt. McGrath pressed the appellant, suggesting that "by her saying to you she wants to know what adults do… That would tell you that she's not an adult". The appellant responded, "oh ya".
13Sgt. McGrath tried to clarify when the appellant realized that H.W. was 13.
Sgt. McGrath: So so you know she's not so when did you find out she was thirteen.
Mr. Storey: Uh like October 30th.
Sgt. McGrath: How.
Mr. Storey: One of her friends told me.
Sgt. McGrath: Who's that.
Mr. Storey: Uh Noah.
Sgt. McGrath: Okay.
Sgt. McGrath: Um and so he tells you on October how do you know it's October 30th.
Mr. Storey: Well Halloween. She wanted to go out with me for Halloween and then get frisky again and then I said no and then that's when I found that he he taps me on the shoulder he goes you do realize she's thirteen that's jail bait buddy you know. I'm like … whoa okay not going there.
14When Sgt. McGrath asked for more detail about H.W.'s desire to know "what an adult would be like", the appellant gave an answer that showed awareness of her age.
Mr. Storey: Oh well she she well she wanted like she wanted to know what what like what sex was she had no idea what it was.
Sgt. McGrath: Hm.
Mr. Storey: And figured you know being in grade eight you you know.
Sgt. McGrath: Ya. How did you know she was in grade eight.
Mr. Storey: Thirteen. I was in I was in grade eight at thirteen.
Sgt. McGrath: No but how did you know that at the time.
Mr. Storey: Uh cause all all I kept hearing was oh ya she goes to [a local middle school] and blah blah blah blah blah after November. I'm like okay well that's unusual.
Sgt. McGrath: Ya. Okay so after you find that out you just had sex with her one more time.
Mr. Storey: Ya and that was it.
15Sgt. McGrath then asked the appellant whether he knew that he had done something wrong. He answered affirmatively after avoiding the issue at first.
Sgt. McGrath: … so listen Chad what if you look at this whole thing your whole relationship with her. … What did you do wrong.
Mr. Storey: What did I do wrong.
Sgt. McGrath: Ya.
Mr. Storey: I let it happen.
Sgt. McGrath: Tell me about that.
Mr. Storey: Uh the reason why the reason why I'm I'm in this position is cause I let everything happen when I should have been able to um do the right things more betterly what then I would have what I did. Um but in the long run it happened it happened and that's pretty much it like you you can't do just one thing you gotta try and make up you gotta try and do other things to try and make things work and I obviously didn't make thing work and it's made things worse and then.
Sgt. McGrath: But what did you do that was wrong.
Mr. Storey: What did I do that was wrong. Uh one thing I did let her do wrong is I let her force stuff onto me when I shouldn't have.
Sgt. McGrath: No what did you do wrong to put yourself in this room.
Mr. Storey: Um I have no idea (laughs).
Sgt. McGrath: But do you see that you had sex with a thirteen-year-old girl.
Mr. Storey: Ya that's that's the wrong thing to do.
Sgt. McGrath: Right and you had sex with a thirteen-year-old girl after you knew she was thirteen.
Mr. Storey: Ya that's even worse.
16When Sgt. McGrath explained that 13-year-olds cannot consent to sex with adults, the appellant expressed an understanding that he had done something criminal. And he also expressed an understanding of the age of consent.
Sgt. McGrath: So what do you think let me ask you this. If you were in the court's position okay. … And you go before them and they say okay this guy here is twenty-one and had sex with a thirteen-year-old girl when he knew she was thirteen what should happen to that guy.
Mr. Storey: He should be thrown in jail at that point.
Sgt. McGrath: Is that what you think should happen to you.
Mr. Storey: Well not necessarily (laughs).
Sgt. McGrath: 'Kay.
Mr. Storey: Why it it it should though because it's it's the law.
Sgt. McGrath: And you know that's wrong.
Mr. Storey: Ya.
Sgt. McGrath: How old do you think a girl has to be for you to sex with.
Mr. Storey: Sixteen.
Sgt. McGrath: 'Kay how do you know that.
Mr. Storey: (unintelligible) uh the law.
Sgt. McGrath: Okay so you're you're familiar with the law.
Mr. Storey: Ya I I I'm very familiar with the law and not only that I also watch jail shows.
17Many of the appellant's answers showed that he understood the trouble he might be in as a result of his relationship with H.W. For example, toward the end of the interview, the appellant said that he and H.W. had agreed to keep their relationship a secret because they both knew it was wrong. That exchange began when Sgt. McGrath suggested that the appellant had chastised H.W. for telling other people about their relationship.
Sgt. McGrath: So you told her you said I told you not to tell people but you did so I don't know if I can go any further. You told her not to tell anyone about your relationship.
Mr. Storey: No.
Sgt. McGrath: You you what does that mean.
Mr. Storey: She wanted she we both wanted to keep it quiet and …
Sgt. McGrath: Why didn't you want her to tell people.
Mr. Storey: Because I don't want us being put both in bad positions making bad names for ourselves because you know two two people that love each right.
Sgt. McGrath: So did you want to keep it quiet because you guys knew that even you loved each other it was wrong.
Mr. Storey: Ya.
Sgt. McGrath: Because you shouldn't be having sex with her is that the reason.
Mr. Storey: Mm ya that's the reason why she we her and I wanted to keep it quiet for a bit.
Sgt. McGrath: Because you knew.
Mr. Storey: We both knew it was wrong ya.
(ii) The second interview: the appellant admits to exchanging sexual images with A.D.
18A few weeks after the first interview, police arrested the appellant for a new set of offences related to A.D., who, as noted above, was 13 at the time. The appellant had sent her Facebook messages saying that he wanted to have sex with her. When interviewed about this, the appellant initially suggested that a friend of his had used his Facebook account to send them but later admitted that he had sent the messages when Sgt. McGrath pressed the issue.
19The appellant displayed awareness of the criminal consequences of sex with minors during the second interview. He asserted that A.D. asked to have sex with him, but that he refused because he knew that serious penal consequences could follow.
Sgt. McGrath: So she's asked you to have sex with her and stuff like that.
Mr. Storey: Yeah she she's asked me asked me and I'm no man like I know what that's gonna I know … that's gonna cost me five years plus a day.
20The appellant eventually admitted to sending A.D. pictures of his erect penis, and to saving pictures of her naked body that she sent in return.
Sgt. McGrath: Chad you sent her pictures of your dick on Facebook.
Mr. Storey: Say what.
Sgt. McGrath: You sent her pictures of your dick on Facebook. Don't make me show you the pictures. Let's just talk about it. How old you think she was when you did that.
Mr. Storey: About twenty three.
Sgt. McGrath: Kay um you sent her pictures.
Mr. Storey: Huh. That's that's one thing because she's obviously hidden pictures that she sent me.
Sgt. McGrath: Okay.
Mr. Storey: She was sending me her ass pics. I got it on my computer at home. I saved them on my on my on my computer at home.
21That interview led to an additional charge: possession of child pornography.
(b) The Appellant's Intellectual Disability
22The appellant led evidence about the intellectual disability from which he unfortunately suffers. At a blended voir dire to determine the admissibility of the interviews, he called Dr. Erica Martin, a forensic and clinical psychologist who had assessed his cognitive function. Both parties consented to Dr. Martin's qualifications as an expert to opine on the appellant's IQ and his level of comprehension and intellect. The Crown called no expert evidence of its own.
23Dr. Martin concluded that the appellant has an IQ of 50, which is below the 0.1st percentile. He performed at about that level on tests of his comprehension and communication, as well as his capacity to effectively interact with others. Dr. Martin testified that the appellant's IQ could impact his ability to understand legal concepts, legal rights, and legal advice. She stated that he had an intellectual disability in the mild to moderate range.
(c) The Voir Dire
24The trial judge held a voir dire to determine whether the appellant's statements were voluntary, and whether the police had breached his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms in obtaining them. The trial judge found beyond a reasonable doubt that they were voluntary, and he rejected the appellant's argument that the police breached his right to counsel under s. 10(b).
25Three witnesses testified at the voir dire. The appellant called Dr. Martin to speak to his intellect and his capacity for comprehension. The Crown called Sgt. McGrath and another officer—Cst. Easterbrook—who described the manner in which the police cautioned the appellant. Both officers testified that the appellant indicated that he understood the police cautions when he heard them. The appellant did not seriously argue otherwise.
26The trial judge made three observations about Dr. Martin's evidence. First, Dr. Martin had not viewed the videos of the appellant's interviews. Second, Dr. Martin's explanation of how she addressed the possibility of malingering—by manually adjusting the appellant's benchmark—struck the trial judge as "a rather casual approach to the issue". And third, he found that Dr. Martin "became argumentative" when cross-examined by Crown counsel, from which he inferred that she lacked the independent perspective expected of an expert witness.
27Dr. Martin indicated that it was "possible" that the appellant had understood everything discussed in the process. The trial judge noted that he, unlike Dr. Martin, had actually watched the videos. In his view, they "show [the appellant] fully engaged in conversation … providing lengthy answers to questions; commenting on his situation generally; discussing his personal life, as well as his hopes and aspirations; and[] … displaying a clear understanding of the seriousness of the charges and the extent of his jeopardy".
28The trial judge noted that the appellant testified at trial and "stood his ground" during a "very lengthy and thorough cross-examination". While he acknowledged that the appellant has an intellectual disability that clearly poses challenges for him, he concluded that the statements were voluntary and properly admitted into evidence.
29The trial judge was satisfied that the appellant satisfied the "operating mind" aspect of the voluntariness test. He recited that test as set out in R. v. Whittle, [1994] 2 S.C.R. 914, at p. 939. Then he concluded in the following terms:
The two video statements herein total 70 minutes of conversation between Sergeant McGrath and Mr. Storey. I have watched each of those videos twice. I have poured over the transcript of those two videos extensively. Having done so, I am fully satisfied that Mr. Storey understood everything he said to Sergeant McGrath, and everything that Sergeant McGrath said to him. On two occasions, he told Sergeant McGrath that he understood the caution, particularly as it pertained to things said in the confines of the interview room. I am satisfied that, throughout those videos, Mr. Storey demonstrated cognitive ability that met and exceeded the threshold test of "the capacity that is required for fitness to stand trial".
30He found that the police made no threats, promises, or inducements, and that there was no evidence of oppression of any kind. And he concluded that any police trickery involved in the interview did not rise to the level of "shock[ing] the community" as described in Rothman v. The Queen, [1981] 1 S.C.R. 640, p. 642.
(2) The Trial Judge Did Not Err in Admitting the Statements
31The appellant argues that the trial judge erred in admitting the statements he gave during his police interviews. First, he says that the trial judge ignored Dr. Martin's evidence, an alleged error which reappears later in the appellant's argument. Second, the appellant says that the trial judge misapplied the common law voluntariness analysis by: (a) failing to inquire into whether he understood that his statements could be used against him, and (b) reversing the onus of proof. Third, the appellant asks this court to craft a new rule to assess the admissibility of statements made by intellectually compromised adults.
32I would conclude that the trial judge made neither of the errors that the appellant alleges. The record is not sufficient to permit this court to address the new issue the appellant raises for the first time on appeal, so I decline to do so.
(a) The Trial Judge Did Not Improperly Ignore Dr. Martin's Evidence
33The appellant says that having accepted Dr. Martin's evidence about his disability, the trial judge had to explain why he gave that evidence no weight when considering the voluntariness of the appellant's statements but failed to provide that explanation. I disagree.
34The trial judge was entitled to accept all, some, or none of Dr. Martin's evidence at each stage of the proceedings: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 76, leave to appeal refused, [2021] S.C.C.A. No. 274 (Williams), and [2021] S.C.C.A No. 263 (Mills). He grounded his conclusions in other aspects of the record, as he was entitled to do. He provided cogent reasons for that choice, including his observation that Dr. Martin's opinion was not based on a review of the videos of either statement the appellant gave to the police. As a result, he concluded, the opinion had important limitations. She provided general statements about the appellant's intellectual disabilities as opposed to offering an opinion directed to the specific circumstances of the appellant's interview. The trial judge arrived at his conclusions after considering all of the evidence, not simply Dr. Martin's opinion, as he was required to do. Similarly, he provided cogent reasons for rejecting various aspects of her opinion, and his findings are entitled to deference from this court.
(b) The Trial Judge Did Not Misapply the Test for Voluntariness
(i) Operating mind
35The appellant argues that the trial judge failed to consider whether the appellant understood that what he was saying to Sgt. McGrath could be used against him.
36I do not agree. The trial judge correctly set out the test for an "operating mind" as described in Whittle, and endorsed by the Supreme Court as recently as R. v. Tessier, 2022 SCC 35, [2022] 2 S.C.R. 660, at para. 8. That test requires the Crown to prove, beyond a reasonable doubt, that the accused possessed the limited cognitive ability to: (a) understand what they were saying and (b) to comprehend that their statement might be used as evidence against them.
37The trial judge found that the appellant fully understood what he said to Sgt. McGrath and what Sgt. McGrath said to him. And that included the fact that, "on two occasions, he told [Sgt.] McGrath that he understood the caution, particularly as it pertained to things said in the confines of the interview room" (emphasis added). The appellant's acknowledgment that he understood the caution represented an affirmation that he knew his words could be used against him in court.
38The appellant responds that this was not enough. The trial judge, he argues, "wrongly assumed that the appellant's claim to understand the caution and the allegations evidenced his actual understanding that his words could have significant negative consequences". Because of Dr. Martin's evidence, "this inference did not necessarily flow", so the trial judge was obligated to "consider[] whether he could rule out competing inferences (e.g., that the Appellant was confabulating)".
39But the trial judge did not make an assumption that the appellant understood the caution, he made a finding to that effect. He was not obliged to accept Dr. Martin's evidence as to a lack of understanding. He was well aware of Dr. Martin's evidence, having properly summarized her view that "people with this type of challenge will often indicate that they understand something when, in fact, they do not". And he gave cogent reasons for preferring his perception of the interview to Dr. Martin's, i.e. that "Dr. Martin did not review those videos", whereas he did. He gave those reasons while discussing the s. 10(b) aspect of the appellant's challenge to the admissibility of his statements, and it would have been preferable for him to repeat that point in disposing of the operating mind argument. But trial reasons are not held to a standard of perfection: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 102. This is not a circumstance in which this court "finds itself unable to determine whether a judge's reasoning is tainted by error": G.F., at para. 115, per Brown and Rowe JJ.(concurring). Rather than ignoring the possibility of confabulation, it is clear from the trial judge's reasons that he ruled out the possibility of confabulation based on his own perception of videos that Dr. Martin concededly had not reviewed. He was entitled to do so.
(ii) The onus of proof
40The appellant also argues that the trial judge reversed the onus of proof applicable to a voluntariness voir dire. He observes that the trial judge "did not instruct himself that it was the Crown's burden to prove voluntariness or explain what evidence assisted the Crown in meeting its burden".
41Again, I do not agree. This is not a case where the trial judge's reasons demonstrate that he misapplied the burden of proof: see, e.g., R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at para. 31, 40 and 44. Here, while the trial judge did not expressly set out the onus of proof, it was beyond dispute. It is clear that counsel and the trial judge were aware that the Crown bore the onus to prove voluntariness beyond a reasonable doubt: the appellant's trial counsel opened her submissions by reminding the court of that onus, and the Crown closed its reply submissions by acknowledging it. The trial judge was under no obligation to state this undisputed proposition of law in his reasons.
42Nor did the trial judge fail to "explain what evidence assisted the Crown in meeting its burden". He explained that he "watched each of [the] videos twice", "poured over the transcript of those two videos extensively" and was "fully satisfied that [the appellant] understood everything he said to [Sgt.] McGrath", including that "he understood the caution, particularly as it pertained to things said in the confines of the interview room".
(c) The Record Cannot Accommodate a New Issue on Appeal
43The appellant makes a new argument before this court: he says that even if the statements were voluntary, they should be excluded because he was not offered protections beyond those afforded to cognitively typical adults.
44The appellant begins from the proposition that Canadian law recognizes the unfairness of admitting the statements of some vulnerable defendants. He relies on the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"), as an example: s. 146(2) of the YCJA provides extra safeguards which must be satisfied before a young person's statement can be admitted against them. And he observes that the Supreme Court has questioned the difference, for some purposes, "between an adult with the mental capacity of a six-year-old, and a six-year-old with the mental capacity of a six-year-old": R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 52. So, he says, accused persons in his position should benefit from protections analogous to those that s. 146(2) of the YCJA provides.
45This argument was not made before the trial judge. Because the record does not suffice to properly address this issue, I would not permit the appellant to raise it now. As a general rule, appellate courts will not permit a party to raise an issue for the first time on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 39, leave to appeal refused, [2016] S.C.C.A. No. 432. To escape that general rule, the appellant must show—among other things—that the established evidentiary record permits the court to fully determine the issue: Reid, at para. 43.
46But he cannot show that in this case. Had this argument been advanced at trial, the Crown would have had an opportunity to call evidence, including expert evidence on this issue, given that the appropriate degree of additional protection that may be afforded to cognitively atypical adults is a complex and polycentric question. This court cannot properly address it without expert evidence and should not address it without the benefit of a ruling on the issue from the judge at first instance.
(3) Conclusion on the Admissibility of the Statements
47The trial judge made no error in admitting the appellant's police statements. I turn now to the argument that the trial judge erred by failing to assess his credibility in light of the expert evidence about his disability. I do not agree, and I explain why below.
C. The Assessment of the Appellant's Credibility
(1) The Trial Judge's Reasoning
48Among the live issues at trial were whether the appellant's relationship with H.W. was sexual; whether the appellant was entitled to the defence of "honest but mistaken belief in age"; and whether the appellant exchanged sexually explicit photos with A.D.
49The Crown's case included H.W.'s testimony and the appellant's police statements. H.W. testified that her relationship with the appellant was sexual, that it included unprotected intercourse, and that the appellant knew that she was 13 years old all along. She said that the appellant ended their relationship because she told others that they were dating. She acknowledged that she wore a bra, used makeup, smoked cigarettes and cannabis, associated with older friends, and used a Facebook account with a fake age.
50For his part, the appellant testified that his admissions to the police were false. He testified that he was confused and just "wanted to get [the interview] done and over with". He said that he thought H.W. was 16 or older because of her "character and personality", and because of how she talked, dressed, and smoked cannabis. He denied that the picture of an erect penis he sent A.D. was his and said that the photo he had was not of her, but something he had found on the internet.
51The trial judge did not find the appellant's mistake of age defence credible. He gave a range of reasons for that conclusion, among them that the appellant's evidence was "riddled with internal inconsistencies" and beset by contradictions with his earlier police statement, which he preferred because "admissions against interest are generally true". He also found it incredible that the appellant would conclude that smoking cigarettes and cannabis suggested that H.W. was at least 16, given his own testimony that he smoked when he was younger than 16. And he rejected the appellant's claim that he was confused during the interview, because "nothing in his words or demeanour … suggest[ed] that he was confused by the questions or the process".
(2) The Trial Judge Did Not Ignore the Appellant's Disability
52The appellant argues that the trial judge failed to assess the evidence in light of his disability in two respects. I do not accept either argument.
53First, the appellant says that by treating the appellant's inculpatory statements as statements against interest, the trial judge failed to consider whether the appellant actually appreciated that the statements were inculpatory. The interviewing officers, he suggests, may have lulled him into the false sense that he was not describing criminal conduct.
54This argument fails because—as the trial judge pointed out—the appellant was aware that criminal consequences could follow from sex with underage girls. He referred to H.W. as "jailbait", and he insisted that she not tell anyone about their relationship. And, in any event, the trial judge explained why he found it implausible that the police had duped the appellant: not only was the appellant "fully engaged" with Sgt. McGrath during the interviews, he "challenged [Sgt. McGrath] without hesitation" when the two disagreed, "and even corrected him on occasion". There is no basis for this court to conclude that the trial judge overlooked the evidence of the appellant's disability.
55Second, the appellant argues that by rejecting the plausibility of the appellant's "mistake of age" defence, the trial judge erroneously held him to a standard appropriate for a cognitively typical adult. The trial judge gave seven reasons for disbelieving the appellant's testimony about his belief in H.W.'s age. His analysis is entitled to significant appellate deference and nothing in the appellant's argument reveals any error in that analysis.
D. The Sentence
(1) The Reasons for Sentence
56The trial judge imposed a six-year penitentiary sentence, less 12 months' credit for restrictive bail conditions. The sentence included 45 months for sexual interference, three months for assault (consecutive), 12 months for possession of child pornography (consecutive), and 12 months for making sexually explicit material available to a child (concurrent with the possession sentence).
57The trial judge did not treat the appellant's disability as a mitigating factor. He stated that intellectual disability only reduces moral blameworthiness if the offender shows a relationship between the disability and the offences at issue. In the trial judge's view that required him to show that his intellectual disability made him unaware of the consequences likely to follow from his actions.
58Relying on Dr. Martin's report, the trial judge concluded that the appellant had not met that burden. He noted that Dr. Martin never suggested that the appellant's limitations prevented him from appreciating the consequences of his behaviour, and he pointed to six aspects of the evidence that implied that the appellant was alive to those consequences:
- H.W. testified that the appellant told her they could not be together because she had been telling people about their relationship and age difference;
- The appellant testified that he and H.W. agreed not to tell anyone about their relationship because he knew it was wrong to have sex with her;
- The appellant testified that he knew that H.W. was "jailbait";
- The appellant told police that he knew the age of consent is 16;
- The appellant told the police that he continued to have sex with H.W. after finding out that she was 13; and
- The appellant testified "of course I would lie to a cop".
59As the trial judge put it, in light of that evidence, he was "simply unable to find that [the appellant's] intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took". As a result, he concluded that the appellant's intellectual disability did not displace the need for a sentence focused on denunciation and deterrence.
60The trial judge also declined to reduce the appellant's sentence based on COVID-19's harsh effect on the prison population. He reasoned that the only sentence he could impose "that would allow [the appellant] to avoid the experience of being in custody during any part of the COVID-19 pandemic would be one of time served". Because that would "obviously" not be a proportionate sentence, he declined to reduce the appellant's sentence at all.
(2) The Trial Judge Committed Two Errors in Principle
61This court reviews sentences deferentially. Appellate courts may vary a sentence only if (1) it is demonstrably unfit, or (2) the sentencing judge made an error in principle that is material because it impacted the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41, 44. "Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26.
62The appellant argues that the trial judge committed two errors in principle. First, he says that the trial judge applied the wrong test to assess the impact of the appellant's disability on his moral blameworthiness. The trial judge, he suggests, incorrectly confined the inquiry into whether the appellant's disability made him unaware of the consequences of his actions. The appellant contends that the appropriate question is broader: did his disability play a role in his criminal conduct? Second, the appellant says that the trial judge erred by refusing to consider the impact of COVID-19 on the basis that no proportionate sentence could keep the appellant out of jail entirely during the pandemic.
63I agree with the appellant on both points. An offender's intellectual disability can remain relevant to their moral blameworthiness even if it does not leave them unaware of the consequences of their actions. The trial judge erred in principle by confining his inquiry to the latter point. He also erred in principle by refusing to consider COVID-19 simply because the appellant would be incarcerated during the pandemic regardless.
(a) The Trial Judge Erred in not Treating the Appellant's Disability as a Mitigating Factor
64When sentencing offenders with cognitive limitations, courts examine (a) the extent to which those limitations contributed to the conduct in question, and (b) the impact of that contribution on the appropriate sentence: R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused, [2014] S.C.C.A No. 53. If it affects the behaviour that leads to criminal liability, cognitive impairment "can attenuate the moral blameworthiness attached to that behaviour", or "justify less emphasis on the principles of specific and general deterrence": R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 174, at para. 64. Courts must not ignore the possibility that an offender's cognitive limitations affected their criminal conduct, but they also must not assume that they did: R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 73. The inquiry is always fact-driven, rooted in the particular offender and the particular offence.
65The trial judge recited this guidance but erred in principle in his application of it. He treated the inquiry as exhausted by whether the appellant's limitations prevented him from understanding the potential consequences of his actions. He observed that "nowhere in her report does Dr. Martin suggest that [the appellant's] intellectual limitations preclude him from appreciating the potential consequences of his actions". He then described the relevant evidence and said that he was "simply unable to find that [the appellant's] intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court". He therefore concluded that the appellant's limitations did not reduce his moral blameworthiness.
66An appreciation of the potential consequences of one's actions does not end the moral blameworthiness inquiry. The evidence on which the trial judge relied showed that the appellant understood that it was wrong to have sex with children, and that legal consequences might flow from doing so. The evidence did not demonstrate that the appellant's limitations played no role in his criminality. The trial judge's analysis appeared to conflate the relevant sentencing question with issues that would be addressed under a s. 16 inquiry into whether an accused is criminally responsible. That was an error in principle, foreclosing further analysis of how the appellant's cognitive challenges might have attenuated his moral blameworthiness.
67Moreover, the error impacted the sentence. As the court stated in Friesen, at para. 91, despite the significant moral culpability that attaches to those who commit offences against children, "offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability". There is no question that the appellant had serious cognitive limitations that should have been viewed as contributing to the conduct in question. Dr. Martin's evidence was that the appellant struggled to "understand the nuances" inherent in the prohibition against sexual relationships with children, and both Dr. Martin and the appellant gave evidence that the appellant formed relationships with children because he viewed them as on his level. (The trial judge did not reject this evidence or prefer other evidence to it—he incorrectly assessed the evidence through the lens of appreciation of consequences).
68Having found an error in principle that impacted the sentence, the appellant must be sentenced afresh: Friesen, at para. 27. I conclude that, before consideration of any credit for COVID-19, four years and six months represents a fit sentence. Although I am not obligated to defer to the trial judge's analysis, I agree with much of it. Friesen suggests that a "mid-single digit" penitentiary term is appropriate for a sexual offence against a child: at para. 114. The appellant committed multiple offences against two children. So, as the trial judge concluded, six years is an appropriate starting point, and 12 months is an appropriate credit for restrictive bail conditions.
69But the sentence must recognize the mitigating factor of his attenuated moral responsibility. The appellant's inability to understand the nuances of his wrongdoing as a result of his cognitive limitations attenuates his moral blameworthiness.
70In the unusual circumstances of this case, a 4.5-year sentence would recognize the gravity of the offence and the significant blameworthiness in knowing that it is wrong to have a sexual relationship with a child, yet pressing on anyway. But it also recognizes that someone in the appellant's position is less morally blameworthy for doing so, a diminished moral blameworthiness that is clear on the record, including in his statements to the police. As I explain below, I would further decrease that sentence to account for incarceration during the pandemic.
(b) The Trial Judge Erred in Denying the Appellant COVID-19 Credit
71The parties agree that the trial judge erred in refusing to grant the appellant credit for the harsh conditions of incarceration during the COVID-19 pandemic. So do I. Those conditions represent a collateral consequence that can entitle an offender to a reduction in the quantum of their sentence: R. v. Stephens, 2024 ONCA 793, at para. 13, fn. 1, citing R. v. Marshall, 2021 ONCA 344, at para. 50. That reduction does not become unavailable just because it would allow the offender to entirely avoid incarceration during the pandemic. By concluding otherwise, the trial judge erred in principle, and that error in principle plainly impacted the sentence. I would grant the appellant the three-month credit he seeks, and to which the Crown consents.
E. Disposition
72I would dismiss the appeal against conviction, grant leave to appeal sentence, and allow the sentence appeal. I would reduce the aggregate sentence to four years and three months.
Released: August 28, 2025
"J.M.F."
"D.A. Wilson J.A."
"I agree. Fairburn A.C.J.O."
"I agree. B. Zarnett J.A."
Publication Ban
1This appeal is subject to publication bans pursuant to ss. 278.95 and 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
