COURT OF APPEAL FOR ONTARIO
Paciocco, George and Dawe JJ.A.
BETWEEN
His Majesty the King
Respondent
and
R.S.
Appellant
R.S., acting in person
Jeff Marshman, appearing as duty counsel
Jacob Millns, for the respondent
Heard: July 7, 2026
On appeal from the convictions entered by Justice Peter Tetley of the Ontario Court of Justice, on April 10, 2025.
REASONS FOR DECISION
1The appellant, R.S., was convicted of multiple charges of assaulting and threatening his three children, and three charges of breaching bail orders. He received a global sentence of imprisonment of 2 years less a day, less credit for time in pre-sentence custody, to be followed by three years’ probation. He has served the custodial portion of his sentence and appeals against his convictions only.
2R.S. was ably assisted on his appeal by duty counsel, Mr. Marshman, who raised a single ground of appeal that focused on the two assault counts that named R.S.’s youngest daughter, A.S., as the complainant. A.S. was nine years old at the time of trial, while the other two complainants were adults when they testified.
3Count 2 was a charge of common assault under s. 266 of the Criminal Code, R.S.C. 1985, c. C-46. It named A.S. as the complainant and was particularized to span a period of more than four years. Count 7 was a charge of assault by choking under s. 267(c) of the Criminal Code. It was common ground at trial that Count 2 was to be understood as a global count capturing a number of different assaults A.S. alleged her father had committed at different times, which could be viewed as an ongoing single transaction. In contrast, Count 7 was understood to capture a specific incident during which A.S. alleged her father had choked her.
4In his reasons for judgment, the trial judge stated that there was “no evidence to suggest the trial testimony [the three complainants] have offered has been influenced by anyone else, or by each other.” Mr. Marshman argues that this was incorrect, because there was evidence that some of A.S.’s memories had been influenced by her older sister, N.S. Specifically, during A.S.’s police statement, which she adopted at trial pursuant to s. 715.1 of the Criminal Code, she said that N.S. had told her that their father had once hit A.S. in the face and caused her nose to bleed. However, A.S. said that she did not remember this, although she did remember once having a bloody nose. At trial, she explained that all she remembered was her nose bleeding and her father wiping it, but she did not remember her father hitting her on this occasion.
5Mr. Marshman argues that the trial judge erred by failing to put sufficient weight on the possibility that A.S.’s evidence had been inadvertently tainted by her sister, and that the remedy for this error should be to quash the convictions on Counts 2 and 7.
6We are not persuaded that the trial judge’s comment reveals any reversible error. A.S. never alleged that her father had assaulted her during the nose bleed incident. Rather, A.S.’s evidence was that on other occasions her father had struck her with a belt on her bum, or hit her on the side of her head with his hand. The trial judge found the appellant guilty on Count 2 based on his acceptance of A.S.’s evidence about these latter incidents. He was entitled to conclude, as he did, that there was no evidence that A.S.’s memory of the assaults she testified about had been influenced by her siblings.
7The trial judge’s failure to mention the conversations between A.S. and N.S. about the nose bleed incident does not show that he disregarded this evidence. The arguments before him focused on intentional collusion and inconsistent testimony. It is not surprising that his judgment did as well.
8In any event, even if the trial judge had erred by failing to recognize that there was evidence of possible inadvertent tainting relating to the nose bleed incident, that error would be harmless as it would not have affected the testimony by A.S. of the other assaults, which on their own would support the conviction on Count 2. Similarly, the conviction on Count 7 would not have been influenced by any such error since it alleges an entirely different act, choking.
9R.S. advanced additional arguments on his own behalf, essentially reiterating his position at trial that the charges against him were part of a scheme by the children’s mother to have them falsely accuse him, so that he would lose custody of the children and they could join her in the United States. R.S. pleaded with the court to see through what was going on and to accept that he was framed and falsely convicted. It is not uncommon for unrepresented appellants to believe that we are entitled as an appeal court to reverse the factual findings a trial judge makes if we disagree with them. That appears to be R.S.’s understanding. But that is not our role. We correct errors of law, unreasonable verdicts and miscarriages of justice that are typically related to the way the trial was conducted. When we perform those functions, unless the judge’s factual findings are based on specific, obvious errors on crucial issues (“palpable and overriding errors”) we must defer to the factual findings made by the trial judge, who has had the benefit of conducting the full trial and seeing the witnesses.
10The trial judge considered the theory that R.S. now raises and rejected it, finding R.S.’s testimony incredible and badly undermined by an audio recording in which he could be heard threatening to assault A.S. As explained, that was a decision for the trial judge to make. We owe substantial appellate deference to the trial judge, and there is no basis for us to interfere with the decisions he made.
11The appeal is accordingly dismissed.
“David M. Paciocco J.A.”
“J. George J.A.”
“J. Dawe J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to 486.5 of the Criminal Code, R.S.C. 1985, c. C-46.