minicounsel

CITATION: R. v. McKenzie, 2026 ONCA 411

DATE: 20260612

DOCKET: COA-23-CR-0079

Fairburn A.C.J.O., Rouleau J.A. and Maranger J. (ad hoc)

BETWEEN

His Majesty the King

Respondent

and

Patrick McKenzie

Appellant

Michelle Biddulph, for the appellant

Katherine Beaudoin, David Friesen and Michael S. Dunn, for the respondent

Heard: October 22-23, 2025

On appeal from the convictions entered by Justice Jamie K. Trimble of the Superior Court of Justice, sitting with a jury, on March 23, 2022, and from the sentence imposed on February 3, 2023.

Maranger J. (ad hoc):

I. OVERVIEW

1Following a trial by a judge and jury, the appellant was convicted on three counts of assault and acquitted on a further count of assault and one count of unlawful confinement. He was sentenced to 34 months’ incarceration. He appeals both conviction and sentence.

2The assaults took place in the context of a domestic relationship. The appellant and the complainant were together for a period of approximately three years.

3There were two witnesses at the trial: the complainant and the appellant.

4The complainant testified that the appellant assaulted her multiple times during the relationship. She also testified that she returned to the relationship after each of these assaults occurred, explaining that she did so because she could not afford to live anywhere else and because she loved the appellant and hoped he would change. She ultimately ended the relationship once she became financially independent and, months later, she reported the incidents of violence to the police.

5The appellant testified at trial and denied ever assaulting the complainant. He claimed that she fabricated the allegations as a means of seeking revenge because she believed he was unfaithful during the relationship. He referenced several text messages from the complainant to buttress the theory of a fabrication motivated by revenge. It was the crux of his defence.

6The single issue argued on the conviction appeal was that the trial judge erred in the instruction provided to the jury on the myths and stereotypes associated with delayed reporting and remaining in an abusive relationship in cases of intimate partner violence.

7The appellant also seeks a stay of proceedings on the basis that his rights as guaranteed by ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms were breached following an order from this court granting him bail pending appeal. Despite the release order, Mr. McKenzie was detained for several hours and transported from the Brampton courthouse to Maplehurst Correctional Complex, where he was strip searched.

II. FACTUAL BACKGROUND

a. The conviction appeal

II. FACTUAL BACKGROUND

8A detailed review of the evidence at trial is not required for this appeal. However, a brief overview of the trial proceedings and nature of the evidence places the impugned jury instruction into context.

9The complainant testified that she and the appellant started a relationship in May 2016. From its inception, she suspected that he was unfaithful. This suspicion was at the root of many of their arguments. The complainant felt that the appellant was disrespectful. The appellant denied cheating on her.

10She testified that in July 2016, during an argument, the appellant became very angry and assaulted her by grabbing her by the neck and slamming her to the ground. She testified that he then headbutted her, causing a laceration to the top of her head and causing her to fall to the ground. That same evening, they both attended the hospital because of the injuries she sustained.

11At the hospital, she testified that she lied to the medical professionals as to how she received the injuries, saying that they happened in a bar fight. She explained that she did so because the appellant was in the room with her at all times and, further, because she still loved him and did not want to get him in trouble. The hospital records relating to this incident formed part of the trial record. Three months after this incident, the complainant moved in with the appellant.

12The complainant then testified to an incident that occurred in 2018 when, during an argument, she pushed the appellant out of her face and he bit her index finger, causing it to bleed. She said he then took her phone and keys to prevent her from leaving their shared residence to go to the hospital. She testified she believed she sent photos of the injury to friends of hers, however she could not find the photos. She remained in the residence that evening.

13The complainant also gave evidence about an incident that took place in April 2018. She said that, following an argument in their bedroom, the appellant pushed her onto the bed, strangled her and smothered her with a pillow with sufficient force that she bled in her mouth and was left with marks on her neck. The incident ended when the appellant had to leave with a friend for band practice. Once the appellant was out of the home, the complainant packed her belongings and stayed with a friend. A few days later, she returned to the appellant because she could not afford to live anywhere else.

14The complainant testified about a final incident that occurred in December 2018. She said that the appellant pinned her to the wall in their bedroom closet during an argument. From there, he followed her into the bathroom where he pushed her into a towel rack, causing it to come off the wall. Once they were out of the bathroom, the complainant said he hit her so hard that she fell to the ground. She said he then kicked her before lifting her over his head and throwing her against the wall.

15In May 2019, the complainant moved into an apartment on her own. She said the relationship at that point had ended. On September 4, 2019, the complainant provided a statement to the police where she made the allegations of assault.

16The complainant acknowledged that, throughout the relationship, she suspected the appellant of infidelity, that this made her angry and it played a significant role in her ending the relationship.

17The appellant testified and denied that he ever assaulted the complainant. He testified that they argued all the time, and that the arguments were primarily over his alleged infidelity. He testified that he was never unfaithful during the relationship.

18Several text messages were introduced into evidence at the trial, including text messages sent between May 2019 and September 2019. Many of the text messages would suggest that the complainant was very angry at the appellant for having cheated on her and for disrespecting her during their relationship. The last series of text messages warned the appellant that the complainant was going to go to the police and press charges.

19The text messages were referenced to support the defence theory of fabrication motivated by revenge for the appellant’s perceived infidelity.

b. The post-conviction Charter breaches

20The appellant argues that he was arbitrarily detained, and unlawfully strip searched, when the authorities at the Brampton courthouse and Maplehurst Correctional Complex failed to comply with this court’s order granting him bail pending appeal.

21The appellant was sentenced on February 3, 2023, at the Brampton courthouse. This court granted bail pending appeal on that same day.

22Thereafter, the following series of events took place:

The issued release order was emailed to appeal counsel by this court at 1:09 p.m., along with a request that counsel facilitate the signing of Appendix A by the sureties. Appeal counsel in turn forwarded the order to trial counsel at 1:15 p.m. The Crown’s office at the Brampton courthouse printed the order to facilitate its signing.
At 2:00 p.m., the appellant was moved from the cells to an interview room with his trial counsel where he reviewed and signed the release order.
At 2:24 p.m., this court was provided with a copy of the signed and witnessed release order.
The release order specifies that “upon the completion of Appendix A to this release order, the person having custody of the appellant shall immediately release the appellant if not otherwise detained”.
At 2:32 p.m., trial counsel advised appeal counsel that the officers in the cells insisted that bail should go through a justice of the peace in Brampton.
At 2:50 p.m., this court emailed the completed bail order to appeal counsel, who forwarded it the Superior Court of Justice trial office in Brampton. He did so based on the advice of the officers in the cells that it had to come through that office.
At 3:07 p.m., appeal counsel forwarded the release order to an address provided by a prisoner escort officer with Peel Regional Police and copied the officer.
At 3:41 p.m., the same prisoner escort officer sent this court’s email and the order to Maplehurst’s Records Department. The officer in communicating with Maplehurst indicated: “We have another appeal. Please advise if this is sufficient. This is new to us, it used to go to JP’s office. We are under impression that he needs to be processed. He will be on the next load.”
After the appellant signed the release order, officers checked on his cell five times, and each time the appellant advised the officers that he had received bail and asked them when he would be released. Each time, they told him they would check on it. He never received any response to his inquiries.
At 4:06 p.m., the appellant was loaded on the transport and sent to Maplehurst. He told the transport officers that he had received bail and that his family was waiting for him at the Brampton courthouse. The officers told him that he would be going to Maplehurst.
When the appellant arrived at Maplehurst, he was placed in a holding cell. He told the officer at booking that he had bail and ought to have been released at the courthouse.
The appellant was then subjected to a strip search. He told the officer as he was being strip searched that he had received bail already and should not be there at all.
At 5:24 p.m., the appellant was placed on a range. He repeated to the officers escorting him that he had bail. He was nonetheless placed in a cell with two other inmates.
At 6:10 p.m., the appeal Crown wrote to the Maplehurst Records Department, attaching the completed bail pending appeal paperwork. She wrote that following a telephone conversation with someone at Maplehurst’s Records Department, she understood that the appellant was required to attend Maplehurst and would then be released that night.
The appeal Crown wrote to the appellant’s appeal counsel at 6:49 p.m. to advise that the duty Sergeant had signed the release and the appellant would be released that night.
The appellant was released at 8:31 p.m.

23The appellant relies on fresh evidence filed jointly with appellants in two other appeals: R. v. Z.C., 2026 ONCA 412 and R. v. Diakoloukas, 2026 ONCA 410. The appellant submitted that this was not an isolated incident but an ongoing problem that requires redress by this court.

24The Crown concedes that the appellant’s rights under ss. 8 and 9 of the Charter were breached in these circumstances. However, the Crown disputes the seriousness of the breaches. The Crown submits that there is no evidence that the problem occurred anywhere other than at the combination of the Brampton courthouse and Maplehurst Correctional Complex or that it is a persisting problem.

25The appellant is seeking a stay of proceedings or, in the alternative and in the event that his conviction appeal is dismissed, a reduction in the sentence imposed.

26The Crown proposes that the court issue a declaration as the appropriate remedy in this case. In the alternative, the Crown argues that an appropriate reduction in the appellant’s 34-month sentence should be granted.

III. ISSUES

27This appeal raises the following issues:

(1) Did the trial judge err in his jury instruction on myths and stereotypes, such that a new trial is warranted?

(2) Was the sentence of 34 months’ incarceration unfit and should the trial judge have imposed a conditional sentence?

(3) Were the appellant’s Charter rights breached when he was detained and transferred to Maplehurst Correctional Complex following this court’s release order, and, if so, what is the appropriate remedy?

IV. THE CONVICTION APPEAL

28The appellant argues that the trial judge made a legal error in his charge to the jury.

29The jury instruction at issue concerned myths and stereotypes on delayed disclosure by complainants and avoidance of their abuser in cases of intimate partner violence.

30The appellant submits that the trial judge used mandatory language inconsistent with the jurisprudence, and that this undermined his defence and the jury’s ability to properly assess the complainant’s credibility.

31The appellant is seeking an order for a new trial.

a. Governing Principles

32In R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, the Supreme Court of Canada instructed appellate courts to take a functional approach when reviewing portions of a jury instruction for potential legal error. At para. 72, Rowe J. summarized the approach to be taken by the reviewing court:

In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court’s task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge’s duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case. [Emphasis in original.]

33The Supreme Court of Canada has explained the need to instruct jurors on the myths and stereotypes used to discredit complainants in sexual assault cases, including the myth that they will complain about the abuse at the earliest opportunity: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. The majority in D.D. suggested the following wording, at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

34An instruction on myths and stereotypes can be appropriate in cases of intimate partner violence: R. v. J.W., 2025 ONCA 637, 178 O.R. (3d) 358, at para. 45, leave to appeal refused, [2025] S.C.C.A. No. 437; R. v. Dupuis, 2020 ONCA 807, 397 C.C.C. (3d) 266, at para. 78; and R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 129.

b. Analysis

35The trial judge instructed the jury on stereotypical reasoning and prohibited inferences arising from the complainant’s delayed or incremental disclosure and from her continued relationship with the appellant after the alleged assaults. The trial judge instructed the jury as follows:

You may not use [the complainant’s] delayed or incremental disclosure of assaults, or her return to the relationship with Mr. McKenzie after any or all of the incidents of abuse standing alone or in combination, to adversely affect her credibility. There are no fixed rules about how victims of assaults committed by intimate partners must behave, including with respect to when they make reports or whether, when, or how frequently they return to the relationship with their alleged abuser. Indeed, among the myths and assumptions that are improper to make in cases involving women who are assaulted by their intimate partners are:

a) that they would normally report assaults immediately, and if they do not do so, an adverse inference should be drawn that the assault did not occur or occur as stated.

b) they would normally not return to an abusive relationship after an event of abuse. if they do so, an adverse inference should be drawn that the assault did not occur as stated.

Some victims of intimate partner violence will report immediately, some later, some incrementally, and some not at all. Some victims of intimate partner violence will return to an abusive relationship immediately, some later, and some not at all. The reasons for not or delayed reporting or returning or not returning to a relationship are as many and as varied as the victims, but include fear, guilt, embarrassment, controlled by the other party, or lack of understanding and knowledge. Therefore, … it is improper to draw a negative inference concerning [the complaint’s] credibility because of the timing of her reporting the assaults or her return to the relationship after one, some, or any of the assaults.

36The appellant submits that the instruction was in error and went too far. He argues that the trial judge: (i) essentially told the jury that they could not use the delayed disclosure or return to the relationship in any way whatsoever; (ii) failed to directly instruct the jury on permissible uses they could make of the delayed disclosure and return to the relationship in analyzing the complainant’s credibility; and (iii) did not provide the wording that was suggested in D.D., at para. 65, namely that “[i]n assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.”

37The appellant ultimately submits that the erroneous instruction completely undermined his defence; by removing the delayed reporting from the credibility assessment, the instruction took away the jury’s ability to consider the complainant’s alleged motive to fabricate.

38In my view, the myths and stereotypes instruction did not tell the jury directly or indirectly that they could not use the delayed disclosure in any manner whatsoever in the credibility assessment of the complainant. When read within the context of the trial and the jury charge as a whole, it was a general instruction on what was impermissible and why. It was a caution, not an absolute prohibition.

39The instruction began by explaining the complainant’s stated reasons for the delayed reporting and for returning to the appellant. It then cautioned the jury that they could not consider the complainant’s delayed disclosure, standing alone or in combination with her return to the relationship, to adversely affect her credibility. At the end of the instruction, the trial judge reiterated the impermissible use by stipulating that the jury should not draw a negative inference in their credibility assessment because of the delayed disclosure.

40I acknowledge that the instruction did not specifically tell the jury what was permitted. Ideally, it would have contained wording that made it clear to the jury that although stereotypical thinking was impermissible, there were other permissible inferences it could draw from the two areas of concern in assessing the credibility of the complainant.

41The overriding issue in the matter before us was whether the jury understood or was “properly equipped” with the law to apply to the evidence in the circumstances of this case.

42I conclude that they were. The jury would have, by virtue of other parts of the charge and the closing argument of defence counsel, understood that the timing of the disclosure and the return to the appellant could be factors to consider in determining the credibility of the complainant, depending on the issue being decided. They would not have been left with the impression or understanding, as suggested by the appellant, that the two factors were completely off base in their credibility analysis.

43The trial judge charged the jury on the complainant’s prior inconsistent statements. In assessing these statements, the jury would have had to consider their timing, including the delay in providing them. The trial judge specifically identified the July 2016 incident, after which the complainant told treating medical professionals that the injuries she sustained were because of a bar fight, and later stated that they were caused by the appellant.

44The trial judge instructed the jury on what was the heart of the defence: the complainant’s motive to fabricate. The timing of the complaint particularly, when taken with the text messages leading up to the complaint, would have made it clear to the jury that the timing or delay in reporting was a factor to be considered when dealing with that specific issue.

45When instructing the jury on the elements of the offence and the evidence the jury should consider, the trial judge specifically referenced the complainant’s returning to the appellant after the assaults took place.

46The trial judge reiterated the motive to fabricate aspect of the defence when he provided the defence position at the end of the charge.

47In the closing argument, counsel for the defence specifically referenced what were permissible and impermissible uses for the jury when considering the complainant’s delay in reporting and return to the appellant. The closing included the following:

Finally, I’m sure the prosecutor is going to suggest to you, and His Honour is going to instruct you, that on their own, without anything else, neither the fact that [the complainant] delayed reporting to the police, nor that she either stayed or returned to Mr. McKenzie raise a negative inference about her credibility. I agree. I’m not suggesting to you that either of those factors, standing alone, do so. What I am suggesting is that they are factors that you can consider, along with any explanations she provided, together with any other factors you find that may negatively impact your assessment of her credibility.

48Finally, defence counsel did not object to the trial judge’s final jury instruction on myths and stereotypes, nor did they request an additional instruction respecting permissible inferences. Their silence, while not determinative, was given some consideration in my overall analysis: Abdullahi, at para 67.

49When the jury instruction and trial are considered as a whole, using the functional approach, the jury would have understood the law and its application to the evidence in arriving at their decision.

50The conviction appeal is therefore dismissed.

V. Sentence Appeal

51The trial judge rejected the appellant’s request for a conditional sentence. In doing so, the trial judge said the following:

Two of the three incidents were particularly violent. Intimate partner violence is an odious form of violence because it involves a breach of trust, victimization, humiliation, and domination of the victim.

In these circumstances, a conditional sentence would not put general deterrence specific deterrence and denunciation at the forefront of sentencing objectives. Indeed, a conditional sentence in this case would debase the seriousness of intimate partner violence.

52The trial judge sentenced the appellant to 34 months’ incarceration. He was entitled to find that a conditional sentence was not appropriate in the circumstances of the case before him. His decision is owed deference.

53Therefore, I would grant leave to appeal the sentence but dismiss the sentence appeal as well.

VI. post-SENTENCE CHARTER ISSUES

54The appellant has tendered fresh evidence in support of the proposition that he was unreasonably detained and unlawfully strip searched, following the issuance of this court's release order on February 3, 2023. The Crown does not oppose the introduction of this fresh evidence.

55The issues raised in this case are similar to the issues raised in two companion appeals: Z.C. and Diakoloukas. The three appeals were joined together to facilitate the arguing of this issue. The three appeals also had factual similarities underlying the breach allegations and the remedy requested.

56The reasons in Diakoloukas, which are being released at the same time as this decision, set out the court’s findings regarding the seriousness of the breaches suffered by Mr. Diakoloukas. Those reasons fully address why a stay is not the appropriate remedy and why given the nature of the breaches, a modest reduction in the sentence is appropriate. I find that the appellant’s circumstances are virtually indistinguishable from those of Mr. Diakoloukas. Therefore, for the reasons set out in Diakoloukas, I conclude that the appellant’s Charter rights were violated and that the appropriate remedy is a reduction in the sentence by a period of one month.

VII. CONCLUSION

57For these reasons the conviction and sentence appeals are dismissed. I would admit the fresh evidence relating to the Charter breaches, set aside the sentence of 34 months’ custody and substitute it with a 33-month custodial term. All other aspects of the sentence remain the same.

Released: June 12, 2026 “J.M.F.”

“Maranger J. (ad hoc)”

“I agree. Fairburn A.C.J.O.”

“I agree. Paul Rouleau J.A.”