COURT OF APPEAL FOR ONTARIO
Favreau, Rahman and Osborne JJ.A.
BETWEEN
His Majesty the King
Respondent
and
B.S.
Appellant
Mark C. Halfyard, for the appellant
Julia Cappellacci, for the respondent
Heard: June 26, 2026
On appeal from the conviction entered by Justice Timothy E. Breen of the Ontario Court of Justice on May 13, 2024.
REASONS FOR DECISION
1The appellant appeals against his conviction for one count of sexual assault. After hearing the parties’ submissions, we dismissed the appeal with reasons to follow. These are those reasons.
2The appellant was convicted of sexually assaulting, A.D. A.D. was 16 years old at the time of the alleged assault. The only two witnesses at trial were A.D. and D.S. D.S. is A.D.’s sister and was married to the appellant at the time of the alleged sexual assault. The appellant did not testify or call evidence. All the evidence was heard in one day.
3The assault happened in the fall of 1999, during an overnight visit to the home of one of the appellant’s work colleagues. A.D. alleged that the appellant, while naked, lay down behind her while she was sleeping and pulled her by her hips against his groin.
4The defence’s focus at trial was the reliability of A.D.’s evidence. In particular, the defence highlighted the following three discrepancies between A.D. and D.S.’s evidence:
A.D. testified that she had slept in a makeshift bed on the floor of the upstairs hallway and that she slept perpendicular to the wall. D.S. testified that her sister slept on a daybed with rails on the back and sides, and that the back of the daybed was pushed against the wall.
A.D. testified that she went to D.S.’ room immediately after the assault and told D.S. that the appellant had gotten into bed naked with her and pushed himself against her. D.S. testified that she and A.D. spoke the following morning in the living room, not in the middle of the night. She said that A.D. told her that the appellant “had climbed into bed with her, and he had put his arm around her and was up against her.” D.S. did not recall being told the appellant was naked.
A.D. testified that the appellant drove her home the next day and that it was just the two of them in the car, while D.S. testified that she, A.D., and the appellant, drove home together because they had all arrived in one vehicle.
5The appellant raises two issues on appeal. First, he submits that the trial judge failed to deal with the three discrepancies set out above and therefore the reliability of A.D.’s evidence. Second, he submits that the trial judge materially misapprehended the evidence of A.D.’s demeanour during her disclosure of the incident to D.S. because he failed to give proper effect to A.D. and D.S.’s diverging evidence on the disclosure.
6We do not accept that these issues give rise to reviewable errors.
7While the trial judge’s reasons are brief, they are responsive to the issues at trial and do not disclose any misapprehension of the evidence. The trial judge’s reasons make clear that he was alive to the reliability concerns raised by the appellant. The trial judge explained that the three discrepancies between A.D. and D.S.’s recollection did not undermine A.D.’s credibility or reliability and could be explained by the passage of time. This finding was open to the trial judge and does not provide any basis for appellate intervention.
8Moreover, the trial judge did not misapprehend the demeanour evidence. Although A.D. and D.S.’ evidence differed about the timing and nature of disclosure, both were consistent that A.D. was emotionally upset when A.D. disclosed the incident to her. It was A.D.’s emotional upset that the trial judge found to be supportive of A.D.’s credibility and reliability, not the precise details of the timing and content of the disclosure.
9The appeal is dismissed.
“L. Favreau J.A.”
“M. Rahman J.A.”
“Osborne 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.