COURT OF APPEAL FOR ONTARIO
Trotter, Dawe and Wilson JJ.A.
BETWEEN
His Majesty the King
Respondent/Appellant
and
Yasser Ghoreishi
Appellant/Respondent
Paul Alexander, for the appellant (COA-24-CR-0053)/respondent (COA-24-CR-0183)
Stephanie A. Lewis, for the respondent (COA-24-CR-0053)/appellant (COA-24-CR-0183)
Heard: January 27, 2026
On appeal from the convictions entered by Justice Rita-Jean Maxwell of the Superior Court of Justice, sitting with a jury, on August 5, 2023, and from the sentence imposed on January 24, 2024.
1Yasser Ghoreishi was convicted of one count each of sexual assault and assault, following a trial by judge and jury. He was sentenced to a 20-month conditional sentence. He appeals his convictions, while the Crown appeals the sentence. For the reasons that follow, I would dismiss the appeal from convictions and allow the sentence appeal, but would stay the execution of sentence.
A. BACKGROUND
2The complainant immigrated to Canada from Iran in December 2019 to attend university. She was connected with Mr. Ghoreishi through a family friend. Mr. Ghoreishi was also from Iran, but older than the complainant and more settled in Canada. At the time, he was pursuing post-graduate studies at Laurentian University in Sudbury. The complainant contacted Mr. Ghoreishi to see if he could assist in guiding her through the university admissions process. Through various communications, Mr. Ghoreishi became somewhat of a mentor to her, providing her with advice and assisting her with her transition to life in Canada.
3In the early part of 2020, the complainant took a trip to Sudbury for four or five days. Mr. Ghoreishi had suggested that the complainant make the trip to visit Laurentian University in advance of making a decision on whether or not to apply for admission to it. Upon her arrival, Mr. Ghoreishi acted as her host and showed her around the university. At some point during her stay, he also offered to introduce the complainant to a potential marriage candidate, S.M. The complainant testified that it was common in Iranian culture for older people like Mr. Ghoreishi to make introductions for the purpose of getting married. She told him that she would like to meet S.M.
4During the complainant’s visit to Sudbury, she stayed with Mr. Ghoreishi at a hotel and, on the last night, the two had sexual intercourse. The complainant testified that the sex was non-consensual and that Mr. Ghoreishi also took a video of her during sex without her consent. However, she remained in touch with him following this incident. They agreed to forget about it.
5In March 2020, Mr. Ghoreishi made an introduction between the complainant and S.M. In April, the complainant travelled to Toronto to meet him in person. Mr. Ghoreishi insisted on certain conditions during her visit with S.M. Among other conditions, he demanded that she not share a room with S.M; that she and S.M. not have sex; that their relationship be kept secret from S.M.’s friends; and that she periodically spend a night away from S.M., with Mr. Ghoreishi. Mr. Ghoreishi was very serious about the conditions and would check in to ensure they were being followed. S.M. testified that he understood the conditions had been imposed to ensure he had a “genuine relationship” with the complainant. He trusted that Mr. Ghoreishi had the couple’s best interests at heart.
6The first night away from S.M. occurred on April 19. Mr. Ghoreishi booked a hotel room for him and the complainant to stay together. The complainant testified that, once in the hotel room, Mr. Ghoreishi demanded she have sex with him, threatening to destroy her relationship with S.M. and distribute the video he had taken in Sudbury if she did not comply. Under duress, she yielded to his demands, and they had sexual intercourse.
7On April 29, the complainant spent a second night away from S.M., again with Mr. Ghoreishi at a hotel. The complainant testified that Mr. Ghoreishi again threatened to destroy her and her relationship with S.M., and demanded that she have sex with him, and that she again submitted to his demands.
8On one of these two occasions, the complainant testified that she attempted to leave the hotel room but was stopped by Mr. Ghoreishi who struck her hand, leaving a bruise. On the other occasion, during sex, Mr. Ghoreishi slapped her in the face.
9The complainant testified to a third and final incident in Toronto occurring on May 9. As on the other occasions, she went to stay at a hotel with Mr. Ghoreishi where he threatened to destroy her before having sex with her.
10After May 9, the complainant and S.M. agreed not to see Mr. Ghoreishi anymore. The complainant had been wanting to cut Mr. Ghoreishi out of their lives for some time and S.M. no longer wished to be bound by Mr. Ghoreishi’s restrictive conditions. On May 19, an incident occurred where Mr. Ghoreishi showed up to S.M.’s house but was not invited in. He was offended and enraged by this. In a series of texts to the complainant and S.M., he called them “garbage” and threatened to “crush” them both.
11Subsequently, in December 2020, a close friend of S.M. received an anonymous letter in which the author made disparaging comments about the complainant’s character, and stated that she had misled S.M. as to her virginity and had hidden her relationship with S.M from his friends in order to avoid being exposed as “unvirtuous”. The author promised to send naked photos and videos of the complainant to other friends and the complainant’s family, thereby damaging the reputation of both the complainant and S.M. S.M.’s friend forwarded the letter to S.M. who confronted the complainant with it. The complainant then told S.M. that Mr. Ghoreishi had sexually assaulted her. She reported the assaults to the police shortly thereafter.
12Mr. Ghoreishi was charged with four counts of sexual assault, two counts of assault, and one count of unlawful confinement. Each of the sexual assault counts was particularized to capture one of the incidents of non-consensual sex alleged by the complainant. The two assault counts were each particularized to refer to one of the two alleged incident in April 2020, while the unlawful confinement charge was particularized to refer to the incident in April 2020 during which the complainant alleged that Mr. Ghoreishi had stopped her from leaving the hotel room.
13At trial, Mr. Ghoreishi did not dispute that he had had sex with the complainant. The key issue was whether it was consensual. Mr. Ghoreishi testified that, on each occasion, the sexual intercourse was initiated by the complainant and was consensual. He denied ever videotaping, threatening, or striking the complainant. He admitted to sending the text messages, but testified that he did not mean what he had said in them and was just upset about being cut off by the complainant and S.M. He denied having any knowledge whatsoever of the letter.
14The jury found Mr. Ghoreishi not guilty of all but two of the counts: one count of sexual assault and one count of assault. Both arose out of the events of April 19, 2020. The trial judge sentenced Mr. Ghoreishi to a 20-month conditional sentence for these offences.
15Mr. Ghoreishi challenges the convictions, raising a single ground of appeal.2 He argues that the jury was misdirected on the use of discreditable conduct evidence. The Crown appeals the sentence, arguing that the trial judge erred in principle in failing to consider whether a sentence of less than two years was appropriate before imposing a conditional sentence, and that the sentence is demonstrably unfit.
B. Analysis
a. Conviction appeal
16The jury heard a great deal of evidence in this case which could be taken as reflecting poorly on Mr. Ghoreishi’s character. This bad character evidence was admissible as part of the narrative, to assist in understanding the relationship between Mr. Ghoreishi and the complainant, and in relation to the defence theory of the complainant’s motive to fabricate.3 But an instruction on the permissible and impermissible uses of this evidence was required. The trial judge gave the following instruction:
In the course of giving testimony, the witnesses testified to certain events or conduct by Mr. Ghoreishi which does not form part of the conduct upon which the charges are based. You might think that some of these events or conduct reflect unfavourably on Mr. Ghoreishi’s character. For example, you heard the testimony from both [the complainant] and [S.M.] that Mr. Ghoreishi tried to control their relationship, monitoring their sleeping arrangements, insisting that they not have sexual relations and insisting that the relationship be kept secret from [S.M.’s] friends. You also heard evidence from [the complainant] that Mr. Ghoreishi threatened, in direct conversations, in text messages and in a letter he is alleged to have written, to destroy her and ruin her reputation if she did not continue a relationship with him. [S.M.] also testified to Mr. Ghoreishi threatening him by making reference to personal information about his life and family in the letter. This evidence came out in [the complainant’s] testimony as part of a narrative, namely to explain sequences of events within the narrative. The evidence may also be relevant to assessing the credibility of [the complainant’s] evidence that she was afraid of Mr. Ghoreishi and continued to meet him and have sexual intercourse with him because he was threatening her. The evidence may also be relevant to assessing the credibility of Mr. Ghoreishi’s evidence. It may assist you in assessing the defence position that [the complainant] has a motive to fabricate allegations. You may consider this evidence for these relevant purposes. I caution you, however, that you must not use evidence of disreputable conduct to conclude that Mr. Ghoreishi is the sort of person who would or is likely to have committed the offenses charged.
17Mr. Ghoreishi submits that this instruction was insufficient. Specifically, he says that the trial judge was required to give an instruction addressing both the risk that the jury might conclude that he was the type of person who would be more likely to have committed the offences and the concern – arguably more salient in this case – that the jury might convict him simply as a form of punishment for being a “bad person”.
18Bad character evidence carries with it several types of prejudice, broadly grouped into two categories: moral prejudice and reasoning prejudice. Moral prejudice refers to the risk that the jury might convict the accused based on “bad personhood”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 102; R. v. Chizanga, 2024 ONCA 545, 172 O.R. (3d) 241, at para. 28, aff’d 2025 SCC 9, 501 D.L.R. (4th) 1; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 71-72. This involves two related concerns. First, there is a concern that the jury might engage in impermissible general propensity reasoning – concluding from the bad character evidence that the accused is the type of person who is likely to have committed the offence with which they are charged. Second, there is a concern that the jury might convict the accused simply to punish them for their other “bad acts”.
19The second category of prejudice is reasoning prejudice. This category encompasses a range of concerns, broadly focused on the risk that the bad character evidence may divert the jury from its task: Z.W.C., at para. 103; Chizanga, at para. 29; Handy, at para. 83, 144. Bad character evidence, unconnected or only loosely connected to the offences charged, may distract the jury and cause confusion. Dealing with such evidence may also take up undue trial time.
20Here, Mr. Ghoreishi’s arguments relate to the second aspect of moral prejudice: the risk that the jury might have convicted simply to punish him for his “bad acts” that did not form the basis for the charges. He argues that the trial judge ought to have warned the jury against this form of prejudice.
21I agree that such an instruction is preferable. Where bad character evidence is admitted, trial judges should generally warn against both forms of moral prejudice: R. v. Chamot, 2012 ONCA 903, 296 C.C.C. (3d) 91, at para. 62. However, the absence of an instruction in relation to one or more aspects of moral prejudice is not always fatal. Jury instructions are not held to a standard of perfection: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9. They are to be assessed functionally and as a whole, in the context of the evidence and the issues at trial, and with a view to whether there was a meaningful risk that the jury engaged in impermissible reasoning: R. v. R.M., 2022 ONCA 850, 421 C.C.C. (3d) 137, at paras. 14-20.
22Here, I am not convinced that there was a meaningful risk that the jury would have convicted Mr. Ghoreishi simply to punish him for his other “bad acts”. Throughout the charge, the jury was repeatedly instructed that the Crown had the burden of proving each of the essential elements of the offences beyond a reasonable doubt. As it related to the bad character evidence, the jury was also appropriately instructed on both the permissible uses of the evidence and that it was impermissible to engage in general propensity reasoning. This instruction was repeated several times throughout the charge, as the trial judge related specific pieces of evidence to the jury.
23It should be recalled that the two aspects of moral prejudice are related – both being concerned with a risk that the jury might convict based on “bad personhood”. As a result, the warning against general propensity reasoning attenuated the risk stemming from the other aspect of moral prejudice – the risk that the jury might convict Mr. Ghoreishi as a form of punishment for being a “bad person”.
24Although not determinative, it is also relevant that defence counsel4 did not raise any concerns about this aspect of the charge at trial, despite the trial judge specifically drawing it to his attention: R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 89. Clearly, defence counsel, who was intimately familiar with his client’s case and had the benefit of witnessing the trial unfold, did not consider there to be a significant risk that the jury would convict as a means to punish Mr. Ghoreishi for his other acts.
25Finally, it is clear from the verdict that the jury took its role seriously and rigorously applied the burden of proof to the evidence. If the jury was simply convicting to punish Mr. Ghoreishi for his other acts, it is unclear why it would have found Mr. Ghoreishi not guilty of five of the seven charges he faced.
26I am satisfied that, read as a whole and in the context of this case, the jury was appropriately instructed and there is no real risk that the jury might have engaged in impermissible reasoning. I would dismiss the conviction appeal.
b. Sentence appeal
27At sentencing, the defence sought a conditional sentence. The Crown sought a custodial sentence of three to four years. The trial judge imposed a 20-month conditional sentence. The Crown challenges this sentence, raising two grounds of appeal: (1) that the trial judge erred in principle in failing to consider whether a sentence of less than two years was appropriate before imposing a conditional sentence; and (2) that the sentence is demonstrably unfit. I agree that the sentence is demonstrably unfit. As a result, it is not necessary to address the Crown’s first ground of appeal.
28A sentence is demonstrably unfit when it “constitutes an unreasonable departure” from the principal of proportionality: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53. This is a high bar. Mere deviation from a sentencing range – even a significant one – does not justify appellate intervention: Lacasse, at para. 67; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 38. A sentence will only be demonstrably unfit where it departs “significantly and for no reason from the contemplated sentences.”: Lacasse, at para. 67.
29While sentencing ranges are merely “tools” and not “straitjackets”, they cannot be arbitrarily ignored: R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 32. Where there is a significant departure from the usual range, the sentencing judge must explain why that is justified on the facts of the particular case: Parranto, at para. 40.
30In cases of serious sexual assault, the primary considerations on sentencing are denunciation and deterrence: R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 39. Conditional sentences will rarely be appropriate in these cases: R.S., at para. 4. The range for sexual assault involving penetration is generally three to five years’ imprisonment: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77. As Mr. Ghoreishi was only sentenced to a 20-month conditional sentence, the trial judge was obligated to explain why that significant departure from the range was justified and how the sentence she imposed adequately accounted for the principles of denunciation and deterrence. No satisfactory explanation was provided.
31Mr. Ghoreishi’s offences are serious. The jury’s verdict reflects that the appellant was found to have threatened the complainant, forcing her to have sex with him under duress, while also assaulting her. Mr. Ghoreishi took advantage of the complainant’s vulnerability as a new immigrant to Canada and betrayed the trust she had placed in him for his own sexual gratification. As reflected in her victim impact statement, and accepted by the trial judge, the offences had a significant impact on the complainant, leading her to be fearful and distrustful of physical contact and to harbour insecurities about her relationship with her now-husband, S.M.
32The mitigating factors which the trial judge considered – Mr. Ghoreishi’s lack of criminal record; his history of living a prosocial life; and his positive rehabilitative prospects – did not on their own justify the departure from the range. As noted by Fairburn A.C.J.O at para. 77 of A.J.K., “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary.”
33In this case, I am satisfied that a conditional sentence was demonstrably unfit. A penitentiary sentence was required in order to achieve the sentencing objectives of deterrence and denunciation. In my view, in light of the mitigating factors in this case, a fit global sentence for Mr. Ghoreishi’s offences was at the lower end of the three to five year range – a penitentiary term of three years.
34Mr. Ghoreishi asks that, in the event the sentence appeal is allowed, this court not reincarcerate him. He has now served the entirety of his conditional sentence and sending him to prison at this stage would serve no useful purpose. If credit were given for time served on his conditional sentence, Mr. Ghoreishi would already be at or near his statutory release date. The Crown did not argue that reincarceration was necessary or desirable in argument before us.
35I agree with Mr. Ghoreishi that, in the circumstances, it is not in the interests of justice that he be reincarcerated. This court is generally reluctant to reincarcerate an offender who has already served the sentence originally imposed: Davatgar-Jafarpour, at para. 50. Imprisoning Mr. Ghoreishi at this point would merely serve to disrupt his employment and housing, and hinder his rehabilitation. In this case, the principles of denunciation and deterrence may be adequately addressed through allowing the sentence appeal, denouncing the sentence originally imposed, substituting the sentence that ought to have been imposed, but staying execution of that sentence.
C. Disposition
36For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, and allow the sentence appeal. I would substitute the conditional sentence for a sentence of 3 years’ imprisonment, but stay the execution of that sentence. The ancillary orders made by the trial judge were not subject to appeal. They remain in place.
Released: July 10, 2026 “G.T.T.”
“D.A. Wilson J.A.”
“I agree. Gary Trotter J.A.”
“I agree. J. Dawe 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.
- In his factum, Mr. Ghoreishi raised two other grounds of appeal. These were abandoned during the hearing of the appeal.
- This is not challenged on appeal.
- Not counsel on appeal.