COURT OF APPEAL FOR ONTARIO
Miller, Dawe and Wilson JJ.A.
BETWEEN
His Majesty the King
Respondent
and
R.O.
Appellant
Jolene Hansell, for the appellant
Neville Golwalla, for the respondent
Heard: February 13, 2026
On appeal from the convictions entered by Justice Michael G. March of the Ontario Court of Justice on January 9, 2024.
REASONS FOR DECISION
I. Background
1The appellant was convicted of one count each of sexual assault, sexual interference, and invitation to sexual touching. All of the offences related to the complainant, J.M., who was approximately 12 years old at the time. In the spring of 2021, J.M.’s mother, K.P., moved herself and her children into the appellant’s home to live with the appellant and his wife and four children. The two families had been close for many years and J.M. was friends with the appellant’s two daughters, A and Ad. In August 2021, the appellant’s wife died. At some point K.P. and the appellant became romantically involved.
2J.M. lived in the appellant’s house for approximately six months before she left to move in with her father in October 2021. After moving in with her father, she confided in her boyfriend that the appellant had touched her sexually. The boyfriend told his mother, who contacted Family and Children’s Services, resulting in the police visiting J.M. at her father’s home to investigate. J.M. spoke with police reluctantly after her father insisted. J.M. gave statements to police and testified at trial that she was the subject of unwanted sexual attention from the appellant, including sexual touching, going back to before the time the two families resided together.
3The trial judge found the complainant to be a reliable and credible witness. The appellant did not testify. The complainant’s mother, K.P. – who was dating the appellant at the time of the trial – and two of the appellant’s children, A and Ad., testified for the defence. They testified that the household was busy – with up to 12 people in the house including 7 children being homeschooled – and there would have been no opportunity to commit the offences without being noticed. They also depicted the complainant as a pathological liar who had animus towards the appellant and could not be trusted.
4The trial judge was not left with a reasonable doubt on three counts. Other counts were withdrawn by the Crown, and on one count the appellant was found not guilty.
II. Issues
5The appellant advanced three grounds of appeal in oral argument:
(1) The trial judge erred by not considering the complainant’s motive to lie when assessing her credibility;
(2) The trial judge erred in his W.(D.) analysis; and
(3) The trial judge relied on facts that were not in evidence.
III. Analysis
6The nature of the allegations, which included a pattern of brief, opportunistic grabbing of the complainant’s breasts and vaginal area, together with an offer of $1,000 if she would let him “put it in” her, made the complainant’s credibility a central issue at trial.
1. Motive to lie
7On this ground of appeal, the appellant focused on a paragraph of the reasons for judgment in which the trial judge stated: “I reject the evidence of K.P., insofar as it attempted to establish a propensity to lie on the part of her daughter, J.M., or any animus supposedly harboured toward K.P.’s new partner, R.O.”
8The appellant argued that this passage shows that the trial judge was under a misapprehension that there was a burden on the defence to prove that the complainant had a propensity to lie, when K.P.’s evidence was instead offered as a reason to doubt the complainant’s credibility. As a result, the appellant argued, the trial judge lowered the Crown’s standard of proof below proof beyond a reasonable doubt.
9This is not a sound reading of the trial judge’s reasons. The primary thrust of the evidence of K.P. (as well as A and Ad.) was that the complainant was a habitual liar and thoroughly untrustworthy. While his expression may have been awkward, the trial judge, when read in context, was saying nothing other than he disbelieved this characterization of the complainant, and the evidence of K.P. (as well as A and Ad.) in this regard did not raise a reasonable doubt. He did not commit a reviewable error.
2. W.(D.) errors
10The trial judge did not expressly advert to R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, in his analysis. He was not required to. The trial judge is presumed to know the law regarding presumption of innocence and burden of proof. Although structuring one’s reasons around the W.(D.) framework is good practice and can help prevent inadvertent errors, not doing so is not an error in itself. The appellant argued, however, that the failure to articulate the W.(D.) framework in his reasons resulted in this case in the trial judge making several legal errors.
a. Overreliance on the complainant’s testimony
11First, the appellant argued that the trial judge over-relied on the complainant’s evidence and effectively shifted the burden of proof on the appellant to disprove his guilt. The argument is that the trial judge found the complainant credible at the outset – because she was a reluctant complainant and because of her testimonial demeanour – and then rejected any defence evidence that contradicted the complainant’s evidence, on the sole ground that it conflicted with the complainant’s evidence.
12We do not agree that this is how the trial judge reasoned.
13First, the trial judge expressly stated that his task was “to state what I am convinced of beyond a reasonable doubt … based upon a full balanced assessment … from all witnesses … Crown or defence”. Second, the trial judge gave reasons for why he found the complainant to be credible and reliable. He was nevertheless left with reasonable doubt with respect to one allegation – the sexual nature of a game of tag played throughout the house with all the children – and did not automatically equate belief in the complainant’s credibility with guilt of the appellant. Third, the trial judge gave reasons for why the evidence of the three defence witnesses did not raise a reasonable doubt with respect to the counts on which the appellant was convicted: he concluded that K.P., A and Ad., out of love and loyalty to the appellant sought to destroy the character of the complainant. He concluded that the main thrust of their evidence was simply intended to persuade the trial judge that the complainant was “a pathological liar bent on ruining [the appellant]. I categorically reject what K.P., A and Ad. tried to make J.M. out to be.” He disbelieved their evidence and it did not leave him with a reasonable doubt. This assessment was open to him.
14Additionally, the trial judge dealt adequately with inconsistencies between the complainant’s statement to police – where she said he attempted to touch her vagina and she swatted his hand away – and her evidence at trial where she said he touched her vagina. The complainant was impeached in cross-examination and she refused to concede that she had said in her police statement that it was an unsuccessful attempt. The appellant argued the trial judge erred by finding that there was an attempt, when the complainant’s evidence at trial was that it was an actual touching. The trial judge, the appellant argued, must have gone outside the evidence to rely on the police statement.
15The trial judge did not make a reviewable error. A trial judge is entitled to accept some, none or all of a witness’s evidence. The trial judge was left in doubt as to whether the appellant had been successful in touching the complainant’s vagina. He was not in doubt that he had touched her in making the attempt. In either case, her sexual integrity was violated and the offence of sexual assault was established.
b. Failure to consider evidence capable of raising a reasonable doubt
16The appellant argued that the trial judge failed to consider four bodies of evidence capable of raising a reasonable doubt: (1) lack of privacy in the house; (2) the complainant’s propensity to lie; (3) the complainant’s motive to lie; (4) contradictory evidence about the complainant’s phone.
17First, the trial judge did not ignore the living circumstances in the household. But this had little bearing on the appellant’s opportunity to commit the offences. The acts complained of were fleeting and opportunistic. A finding of lack of privacy would not be inconsistent with what was alleged.
18Second, the trial judge did not ignore evidence about the complainant’s propensity to lie. This was the central plank in the defence. All of the defence evidence was directed to the credibility of the complainant. But the trial judge was entitled to make the credibility assessments that he did.
19Third, the appellant argued that the trial judge did not consider that the complainant had a motive to lie. She did not want to live at the appellant’s house and wanted to live with her father. This argument is undercut by the circumstances of the making of the allegations. By the time the complainant first spoke to anyone about the offences, she had already moved in with her father. She had already achieved what she was said to hope to achieve by making a false allegation.
20Fourth, the appellant argued that the complainant was angry with her mother the day she moved out of the house because her mother had confiscated her phone. This was said to have motivated her to make a false accusation. K.P. testified she was angry. The complainant testified she was not.
21The trial judge did not err in not finding this evidence to raise a reasonable doubt. It would have been exceedingly odd for the complainant to try to take revenge on her mother by telling her boyfriend that the appellant had committed the offences and hoping that the boyfriend would then trigger a cascade of events that led to police involvement.
c. Uneven scrutiny/misapprehension of evidence/insufficiency of reasons
22The argument – advanced under several different descriptions – is that the trial judge misapprehended K.P.’s evidence to conclude that she was financially dependent on the appellant, and thus had a reason to protect him. The appellant argues that K.P.’s evidence was that she was financially independent. This submission is incorrect, however. K.P.’s evidence was that she believed she could become financially independent. The trial judge did not make this error.
3. Reliance on facts that were not in evidence
23Finally, the appellant argued that the trial judge made negative findings about the appellant in the absence of evidence.
24First, the trial judge stated that the appellant “looked for opportunities” and “knew exactly when he could take certain sexual liberties with J.M.” This conclusion is grounded in the complainant’s testimony. The trial judge did not use it as independent evidence to support the complainant’s testimony.
25Second, the trial judge stated that the appellant “likely wished to endear himself” to the complainant. Again, this was an inference that the trial judge could make. It did not function in the trial judge’s reasons as independent confirmatory evidence.
4. Conclusion
26The appellant has not identified any reviewable errors in the trial judge’s reasons.
IV. Disposition
27The appeal is dismissed.
“B.W. Miller J.A.”
“J. Dawe J.A.”
“D.A. Wilson J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.