COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Rouleau J.A. and Maranger J. (ad hoc)
BETWEEN
His Majesty the King
Respondent
and
Z.C.
Appellant
Matthew Gourlay and Taylor Wormington, for the appellant
Andrew Cappell, David Friesen and Michael S. Dunn, for the respondent
Heard: October 22-23, 2025
On appeal from the convictions entered by Justice Alison R. Mackay of the Ontario Court of Justice, on July 19, 2022.
I. OVERVIEW
1Z.C. appeals from his conviction for one count of sexual interference and one count of sexual assault. The sexual abuse occurred over a decade ago, when the complainant was between the ages of 12 and 14. Credibility was the central issue at trial. The appellant was sentenced to 15 months’ imprisonment followed by one year of probation.
2The trial judge found beyond a reasonable doubt that the appellant touched the complainant for a sexual purpose on one occasion and acquitted the appellant on three counts based on different incidents. With respect to the acquittals, the trial judge found the complainant’s evidence credible but had a reasonable doubt as to whether the appellant acted for a sexual purpose during these other incidents.
3The appellant also seeks a stay of proceedings on the basis that his rights guaranteed by ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms were breached when he was sent to Maplehurst Correctional Complex following this court’s order that he be released pending appeal.
II. factual background
a. The conviction appeal
4The complainant was 23 years old when she testified. She was about 12 to 14 years old when the incidents occurred. The complainant’s mother had left her in the appellant’s care during the Christmas holidays. During the relevant period, the appellant’s two daughters also lived with him but his wife resided in China.
5The Crown’s case rested primarily on the complainant’s evidence. She alleged that, during her stay with the appellant, he made sexual comments, touched her in a sexual manner and had her watch pornography. The incident that led to the convictions happened while the appellant was putting cream on the complainant’s injured knee. She said that he put her on his lap and, at one point, reached inside her underwear and touched her vagina.
6The appellant testified in his defence. He recalled the complainant staying at his home twice but he maintained that there had been no sexual impropriety. As the trial judge put it, he “essentially denied all of what [the complainant] said.” As part of his defence, the appellant also called his wife, W.L., and his two daughters, Y.C. and M.C., as witnesses.
7In detailed reasons, the trial judge found the complainant to be credible and she accepted her evidence. The trial judge also explained why she determined that the appellant, his wife, W.L., and his daughter, Y.C., were not credible witnesses. The youngest daughter, M.C., was deemed credible overall but her evidence did little to support the appellant’s denial of the allegations. In fact, the trial judge found that M.C. corroborated some aspects of the complainant’s evidence.
b. The post-conviction Charter breaches
8The appellant was sentenced on June 8, 2023. On the same day, this court granted him bail pending his appeal. At 5:46 p.m., this court’s release order was emailed to the Brampton courthouse where the appellant was being held and to Maplehurst’s Records Department. Following some issues with email addresses, the special constable responsible for the cells in the Brampton courthouse received the completed release order at 6:09 p.m. At 6:12 p.m., the Maplehurst Records Department also forwarded this court’s correspondence to the Brampton courthouse cells’ email address.
9This court’s email informed the recipient at the Brampton courthouse that “the appellant’s signature needs to be witnessed by someone who works in the institution”, and that following all necessary steps, “the appellant is to be released unless otherwise detained.” Furthermore, the appellant’s release order specified 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”.
10Despite receiving this court’s release order, the officer responsible for the cells at the Brampton courthouse refused to complete the paperwork and release the appellant. Maplehurst’s Records Department had advised the special constable that the appellant should be transported to Maplehurst, where he would be processed and released. The special constable complied, as this appeared consistent with the example of a completed release order signature page included in this court’s email instructions, which showed a Maplehurst correctional officer witnessing the signature. The appellant was then transferred to Maplehurst at approximately 6:30 p.m.
11It took about 30 minutes for the appellant to get to Maplehurst. The appellant was then admitted at 7:05 p.m. and released two hours later, around 9:10 p.m. During the two-hour period he was detained, the appellant maintains that he was unnecessarily strip searched, and claims that the search was not carried out in compliance with the guidelines set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
12At 8:20 p.m., following the strip search, the appellant was made to change into prison clothes and brought to a cell with two other prisoners and a bunk bed. He was removed from the cell at 8:51 p.m. to be processed for discharge. Upon discharge, the appellant then changed back into his street clothes which he maintains was done in front of around ten prison guards.
13The appellant relies on fresh evidence filed jointly with appellants in two other appeals: R. v. McKenzie, 2026 ONCA 411, and R. v. Diakoloukas, 2026 ONCA 410. The appellant submits that this was not an isolated incident but rather a continuing problem that requires redress by this court.
14The Crown concedes that the appellant has shown that his Charter rights were breached but disputes the seriousness of those breaches. In the Crown’s submission, although the strip search was unnecessary it was carried out in accordance with the Golden guidelines. Further, the Crown argues that there is no evidence that this problem occurred anywhere other than the combination of the Brampton courthouse and Maplehurst Correctional Complex or that the problem persists.
15In terms of remedy for the Charter breaches, the appellant seeks a stay of proceedings or, in the alternative and in the event that his conviction appeal is dismissed, a reduction in sentence. The Crown for its part submits that a declaration is the appropriate and just remedy. In the alternative, the Crown argues that an appropriate reduction in the appellant’s 15-month sentence should be granted.
III. Issues
16There are two issues raised on appeal. They are:
(1) Did the trial judge misapprehend key pieces of the appellant’s evidence, thereby causing an unfair trial and a miscarriage of justice?
(2) Did the appellant’s detention and transfer to Maplehurst Correctional Complex following this court’s release order breach his Charter rights and, if so, what is the appropriate remedy?
IV. the conviction appeal
a. Positions of the parties
17The appellant submits that the trial judge misapprehended three key portions of his evidence. First, she misapprehended his evidence concerning video calls made to his spouse W.L. at dinner time. The appellant argues that the trial judge used her rejection of Y.C.’s categorical evidence to discredit the appellant’s more nuanced version of events. Second, she misapprehended his police statement and trial evidence regarding his consumption of pornography, which she found to be inconsistent. Third, she misapprehended his evidence regarding his viewing of the film The Silence of the Lambs since he moved to Canada. The latter two misapprehensions were compounded by interpretation issues that occurred during the police interview and at trial.
18These three misapprehensions of the evidence were, in the appellant’s view, material to the trial judge’s credibility analysis. Her credibility findings concerning the appellant were heavily focused on the misapprehended evidence. As a result, the appellant’s trial was unfair and there was a miscarriage of justice. A new trial is therefore required.
19The appellant also brings a motion to admit fresh evidence, consisting of two affidavits, one by a Cantonese interpreter and one by a Mandarin interpreter, and of a letter written by an English to Chinese translator. The appellant relies on the proposed fresh evidence to argue that two of the trial judge’s alleged misapprehensions “were compounded by Cantonese-Mandarin-English interpretation issues during the police interview and at trial”. The appellant states that his mother tongue is Cantonese and that he has a more limited understanding of English and Mandarin. Because his police interview was conducted in English and Mandarin, the appellant submits that the differences the trial judge noted between statements made during his police interview and at trial were due to translation issues and ought not to have affected his credibility.
20The Crown maintains that, in convicting the appellant, the trial judge did not misapprehend the evidence. She understood the appellant’s testimony and conducted her credibility inquiry according to a proper assessment of the facts. She took a dim view of the appellant’s credibility and provided several compelling reasons for rejecting his testimony, all of which were grounded in the evidence. The appellant has, in the Crown’s submission, failed to show that any alleged deficiency in the interpretation during his police statement or trial testimony caused the trial judge to misunderstand his evidence. Accordingly, the conviction appeal should be dismissed.
b. Analysis
21It is well settled that appeals against conviction based on a misapprehension of evidence are subject to a stringent test. Appellate intervention is warranted only if the misapprehension goes to the substance rather than the detail and plays an essential part in the reasoning process resulting in a conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
22If the alleged misapprehension concerns evidence used to assess credibility, the focus is on the importance of that evidence in the credibility analysis. A miscarriage of justice is more likely if the trial judge misapprehended parts of the accused’s evidence that were central to the assessment of credibility: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at para 38. By the same token, there is no miscarriage of justice if the misapprehended evidence was not essential to the credibility assessment: Alboukhari, at para. 39.
23As the Supreme Court of Canada held in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56: “an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.”
24Turning now to the alleged misapprehensions, the appellant argued that the basis for the trial judge’s rejection of his evidence is summarized in paragraph 171 of the reasons for conviction, wherein the trial judge stated:
For reasons already discussed, I did not find [Z.C.’s] evidence concerning the video calls with his wife at the dinner table to be credible. I also did not find his evidence credible concerning whether he watched Silence of the Lambs in Canada or whether he watched pornography. While I have some concerns about his evidence concerning when he could understand certain points of what was said to him in Mandarin during his police statement, I allow for the real possibility that this could be the case.
25In the appellant’s submission, each of the three findings referenced by the trial judge in that paragraph was a misapprehension of the evidence. As I will explain, when viewed in the context of the reasons and record as a whole, each of these findings was open to the trial judge and is not the product of a misapprehension of material evidence.
i. The video calls
26At trial, the complainant testified that the appellant often raised sexual topics with her including at the dinner table. Y.C., however, testified that sexual topics were never discussed and insisted that her mother, W.L., was present at the dinner table on video from China and would have observed every moment of every dinner. However, in cross-examination, W.L. gave a more nuanced version of supper time video calls. She agreed that, for various reasons, she occasionally missed all or part of the dinner. M.C., who was eight at the time, could not recall what was discussed at the dinner table. The appellant, unlike Y.C., did not make a categorical statement that W.L. was always present on video at dinner.
27The trial judge found that the evidence of the appellant and all of his family was that at no time during dinner hour would the appellant broach such inappropriate topics and that “[e]ssentially … the mother was present for each dinner hour by video”. The clear implication in this evidence was that, because the appellant’s wife was present, he would not have broached topics of this nature. The trial judge rejected that evidence, finding it not to be credible.
28The appellant argues that this reflects a misapprehension of his evidence. In effect, the appellant argues that the trial judge conflated his “more nuanced version of events” with the categorical evidence of his daughter Y.C. Thus, the appellant submits, the trial judge made negative credibility findings based on “evidence he never gave”.
29I do not agree with the appellant’s submission. Nowhere in his testimony does the appellant accept that his wife was sometimes absent at dinner. Admittedly, he did not explicitly testify that she was indeed present throughout every dinner, as Y.C. did. However, viewing the record as a whole, it is apparent that at trial the appellant relied on the video calls to answer the Crown’s questions about inappropriate dinner conversations. This can be illustrated by the following exchange:
Q. I’m going to suggest that you would have inappropriate dinner conversations with your children and [the complainant] present?
A. So call – so-call inappropriate conversation, definitely no.
Q. And that you would call your wife after you had finished having these conversations with [the complainant] and the girls?
A. There’s no such happening. May I, may I supplement back?
Q. Yes, if you would like to.
A. During these – during dinnertime, not only I call my wife, having video communication with her but she would also call her mommy using her iPad. I’m referring to [the complainant] with [her mother] or her father.
30The clear implication in the appellant’s answer is that the presence of his wife by video during the meal was an answer to the allegation concerning inappropriate conversations.
31In my view, there was no misapprehension of evidence. Taking all of the testimony into account, it was open to the trial judge to conclude that the appellant’s answers “essentially” amounted to a claim that his wife was always on video at dinner. He never conceded that she was occasionally absent, despite a Crown question to that effect which he did not directly respond to. In fact, had he made such a concession, his evidence concerning the video calls, along with that of his wife and daughter Y.C., would have done little to refute the complainant’s evidence about sexualized comments at dinner. As a result, I find no error in the trial judge’s finding that the appellant’s evidence with respect to the video calls was not credible.
ii. Appellant’s consumption of pornography
32In her evidence, the complainant recalled that the appellant had shown her pornographic movies, with Y.C. also present. One of the movies that the complainant described as having been “watched many times” was a Japanese pornographic movie.
33During his police interview, the appellant was asked in English whether he watched Japanese pornography. A second officer then repeated the question in Mandarin but, as the trial judge noted, it is not clear that the Mandarin-speaking officer used the word “Japanese” in the translated version. In response to this question, the appellant confirmed that he did watch pornography on his computer. He said that pornography would appear “by itself” as a pop-up advertisement when he browsed the Internet. Occasionally, he would watch it for “just a few minutes.”
34At trial, the appellant was again asked about Japanese pornography. He said he could not tell from the pop-ups whether the pornography was Japanese or from somewhere else. Crown counsel then directed the appellant to the transcript of his police interview, specifically where the officer asked him whether he watched Japanese pornography. It was noted that his answer during the police interview was that he “sometime” did. The appellant responded that “the translation was not clear if I was asked whether I watch porn”. Crown counsel then asked the appellant to confirm his statement:
Q. Okay, one moment. So, you’re saying it was unclear to you whether or not they were asking you specifically about watching Japanese porn?
A. As I look at this record, I was not sure whether he – he was specifically referring to this.
35The appellant also did not accept the Crown’s suggestion that he would occasionally watch the pop-up pornographic videos “for a few moments”. He replied that he “would probably immediately close” pornographic pop-ups. He conceded that he did not say this in his police interview, but that was because the police “did not ask [him] whether [he] immediately closed it.”
36The trial judge did not find the appellant’s evidence on these topics to be credible for two main reasons. First, the trial judge found inconsistencies in the appellant’s answers regarding Japanese pornography. In his police statement, the appellant, when asked, had responded that he sometimes did watch what he was told was Japanese pornography. At trial, however, he said that he was unable to tell if the pop-up videos were Japanese. The trial judge relied on this inconsistency notwithstanding the appellant’s claim that he was confused by the police question. She “allowed for the real possibility” that he did not understand everything the Mandarin-speaking officer said. But she thought that it was “surprising” that the appellant would need to have the word “Japanese” translated during the police interview given that his daughter regularly watched Japanese animated shows at the time and that he had a reasonable comprehension of English since he spoke to his daughters in both Mandarin and English.
37The second reason that the trial judge did not find the appellant’s evidence on this topic to be credible was the fact that the appellant changed his answer on whether he watched pornography at all. He had told the police during his interview that he sometimes watched for “a few minutes” before closing the pop-up but, at trial, he testified that he “immediately” closed such videos.
38On appeal, the appellant submits that the trial judge’s findings are the result of a misapprehension of evidence. He argues that, during the police interview, he was confused about the word “porn”, not about the word “Japanese” and this would explain the apparent inconsistency. In support of his submission, he proposes to adduce fresh evidence on the various possible translations of “porn” or “pornography” in Mandarin and Cantonese.
39I do not accept that the trial judge misapprehended the evidence. It was reasonable for the trial judge to infer from the police interview transcript that the appellant understood what the officers meant when asking him about “porn”. The officers used the word multiple times and the appellant’s answers were coherent and responsive to the questions. In cross-examination at trial, the appellant appears to confirm that he understood the kind of movie being discussed during his police interview:
Q. And then later you say – the officer asks you if there were any favourite movies you watch a lot and you said no and it was translated, “are there any movie, favourite movies you watch frequently?” and you say “No, I – I don’t like this kind of movie”.
A. Yes. This kind of movie this was referring to the pornographic movie. According to the context of this record, I meant that I do not like this kind of pornographic movie.
40The trial judge was best positioned to assess the appellant’s evidence and the record supports her conclusion that the appellant’s purported confusion was about the word “Japanese”, and not about the word “porn”. Even accounting for the appellant’s incomplete understanding of English and Mandarin, the trial judge explained why that alleged misunderstanding was “surprising”. In sum, the trial judge took a realistic view of the evidence and her findings in that regard were available to her on this record and do not constitute misapprehensions.
iii. The Silence of the Lambs
41The complainant described an incident which occurred while she was watching The Silence of the Lambs with the appellant and his daughter Y.C. The complainant explained that the appellant sat on the couch between her and Y.C. He had his arms around both girls and, throughout the movie, touched the side of the complainant’s body. During a scary scene, the complainant said that she became nervous and that her “legs were shaky”. At that point, the appellant ran his hand back and forth on her thigh, over her clothing.
42The trial judge acquitted the appellant on both charges relating to this incident. The trial judge found the complainant’s evidence credible and was satisfied that the appellant touched the complainant as alleged. Still, she had a reasonable doubt about the sexual purpose of the touching. It was “possible though unlikely” that the appellant touched the complainant “to calm her nerves or out of affection”.
43Despite the acquittals, the trial judge found that the appellant’s evidence relating to this incident was not credible. The appellant had denied watching The Silence of the Lambs, or any other movie, with the complainant. While he did not recall having the DVD for The Silence of the Lambs in the house, he told police that he watched it several times in China. In Canada, however, he saw it come up on television a few times but did not watch the whole movie.
44The appellant argues that the trial judge’s rejection of his evidence that he did not watch The Silence of the Lambs in Canada was a misapprehension of evidence stemming from interpretation issues. According to the appellant, the trial judge’s finding appears to flow from the appellant’s evidence that, while he watched the movie several times in China, he “caught” the movie but did not “watch” it in Canada. His proposed fresh evidence compares the semantic nuances between the English words “watch”, “saw” and “caught” and their equivalence in Cantonese and Mandarin.
45In my view, the appellant is disputing a finding that the trial judge did not in fact make. She never raised the inconsistency he seeks to disprove. The trial judge noted and clearly understood the appellant’s position that he did not clearly understand the police question about watching the movie in Canada. She accurately summarized his evidence without implying that it was self-contradictory. Rather, she contrasted his evidence with that of Y.C. who remembered seeing the movie around the relevant period. Y.C. said the movie “was playing on TV a lot” and that she might have watched it with her father.
46In short, the trial judge simply did not believe the appellant’s blanket denial of the complainant’s evidence regarding The Silence of the Lambs. In making her credibility finding, the trial judge reminded herself of possible difficulties with interpretation during the police interview and at trial. She did not rely on the difference between watching or seeing or catching or glancing at the movie. Her reasons disclosed no misapprehension of the appellant’s evidence.
c. Conclusion on the conviction appeal
47This was a short and uncomplicated trial. The trial judge provided extensive reasons explaining why she rejected the defence evidence and accepted the testimony of the complainant. The trial judge outlined a number of reasons for rejecting the appellant’s evidence, only three of which are impugned on appeal. As I have explained, I do not accept that the trial judge’s findings reflect a misapprehension of the evidence and see no basis to interfere with her conclusions. The appellant has not met the stringent test to establish that a miscarriage of justice has occurred. Further, as set out above, the interpretation issues raised by the appellant do not undermine the trial judge’s findings and conclusions. Therefore, the fresh evidence tendered on the conviction appeal does not meet the Palmer test for admissibility as it could not reasonably be expected to have affected the verdict: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. As a result, I would not admit the fresh evidence tendered on the conviction appeal and would dismiss the appeal.
V. the breach of the appellant’s charter rights
48The appellant has tendered fresh evidence in support of his contention that he was unreasonably detained following this court’s release order. The material also describes the strip search he underwent as well as the circumstances of his detention at Maplehurst while awaiting his release. The Crown does not oppose the receipt of this fresh evidence.
49The issues the appellant is raising are similar to issues raised in two companion appeals: R. v. McKenzie and R. v. Diakoloukas. All three appeals were joined together for the purpose of arguing this issue. The reasons in Diakoloukas which are being released at the same time as the present reasons outline the court’s findings with respect to the seriousness of the breaches suffered by Mr. Diakoloukas. The reasons in Diakoloukas explain why a stay is not the appropriate remedy and why given the nature of the Charter breaches, a modest sentence reduction is the appropriate remedy. In my view, there is little to distinguish the appellant’s circumstances from those of Mr. Diakoloukas. As a result, I adopt the reasoning in Diakoloukas and, for those reasons, I conclude that the appellant’s Charter rights were violated and the appropriate remedy is a one-month sentence reduction.
VI. Conclusion
50For these reasons I would dismiss the conviction appeal. I would admit the fresh evidence tendered with respect to the Charter breaches, set aside the sentence of 15 months’ custody and substitute it with a 14-month custodial term. All other aspects of the sentence remain unchanged.
Released: June 12, 2026 “J.M.F.”
“Paul Rouleau J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. Maranger J. (ad hoc)”
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.