COURT OF APPEAL FOR ONTARIO
Favreau, Rahman and Osborne JJ.A.
BETWEEN
His Majesty the King
Respondent
and
S.S.D.
Appellant
Sean Biesbroek, for the appellant
Julia Cappellacci, for the respondent
Heard: June 23, 2026
On appeal from the convictions entered by Justice M. Edward Graham of the Ontario Court of Justice on April 11, 2024.
A. introduction
[1] The appellant was convicted of assault, sexual assault and uttering threats to cause death. The complainant was the appellant’s wife at the time of the alleged offences.
[2] The appellant was originally charged with several offences spanning from 2018 to 2022. At the start of trial, the Crown elected to proceed on only five counts. The primary witnesses at trial were the complainant and the appellant. The trial judge found the appellant guilty only of the charges that related to an incident that allegedly occurred in September 2018, and not guilty on the remaining charges.
[3] The appellant’s primary argument on appeal is that the trial judge’s reasons are insufficient for appellate review and that he improperly relied on this court’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. The appellant also submits that the trial judge misapprehended the evidence and convicted him of uttering threats without any evidentiary foundation.
[4] I would allow the appeal. The trial judge’s assessment of the appellant’s credibility is internally inconsistent. The trial judge stated in one part of his reasons that he did not find the appellant credible or reliable. In another part of his reasons, the trial judge stated that there were “few flaws” in the appellant’s evidence, and purported to rely on J.J.R.D.to find the appellant guilty of the charges arising from the September 2018 incident. It is therefore not possible to discern the basis on which the trial judge found the appellant guilty beyond a reasonable doubt of the September 2018 offences and, in any event, his reliance on J.J.R.D. was in error. I would allow the appeal on this basis. In the circumstances, it is not necessary to consider the other grounds of appeal.
B. Background
[5] The appellant and the complainant were married in 2015 by way of an arranged marriage. The appellant was a truck driver. The complainant did not work outside the home. They separated in late 2022.
[6] After the couple separated, the complainant went to the police. She alleged that the appellant assaulted, sexually assaulted and threatened her throughout their marriage, starting in 2018. She also alleged that the appellant choked her in November 2022.
[7] The appellant was charged with 12 separate counts spanning 2018 to 2022.
[8] At trial, the complainant testified that, in September 2018, she noticed some unusual charges on the appellant’s credit card. The appellant was confronted about these charges during a family meeting at her brother’s home. The complainant claimed that, when she returned home with the appellant, he beat her and sexually assaulted her. The complainant also testified that the appellant assaulted and sexually assaulted her throughout the relationship. However, she did not provide any specifics about these other alleged incidents. The complainant further alleged that, throughout the relationship, the appellant threatened to kill her and her family if she told anyone about what was happening. Finally, the complainant testified that, near the end of the relationship, on November 4, 2022, the appellant choked her to the point where she lost consciousness.
[9] The appellant testified in his own defence. He acknowledged that he used the complainant’s credit card in 2018 and that there was a meeting where he was confronted about this, but denied being physically abusive towards the complainant. He also denied that he choked the complainant on November 4, 2022, claiming that he was away on a delivery trip at that time and that he never returned home after that date.
[10] Besides testifying in his own defence, the appellant called an employee from the trucking company in support of his evidence that he was away on November 4, 2022. He also provided various records from the trucking company that he said supported his position that he was away.
C. decision BELOW
[11] At the beginning of the trial, the Crown elected not to proceed on some of the charges against the appellant. During closing submissions, the Crown invited the trial judge not to convict the appellant of a count of assault that spanned from January 2019 to December 2022 because the complainant was unable to give any specific evidence in support of this charge.
[12] The trial judge found the appellant not guilty on the choking charge, and guilty of the three charges arising from the incident in September 2018.
[13] In the analysis section of his reasons, the trial judge first reviewed the appellant’s evidence. The trial judge stated that the appellant denied being physically abusive towards the complainant. The trial judge reviewed the appellant’s evidence regarding his use of the complainant’s credit card and the family meeting. He then reviewed the appellant’s evidence regarding the events of November 2022, including the records the appellant produced that he said showed he was away on November 4, 2022. The trial judge found that, given some inconsistencies and irregularities in the drivers’ log and GPS data, this evidence was unreliable and he said that he gave it no weight. The trial judge also considered text messages exchanged in November and December 2022, and stated that he was “concerned” with the appellant’s failure to respond to the complainant’s accusation that he beat her. Ultimately, the trial judge concluded that “[w]ith one exception, which I will detail later, I did not find Mr [D.] to be a credible or reliable witness” (emphasis added).
[14] The trial judge then considered the complainant’s evidence. He found that there was no evidentiary foundation for the appellant’s position that she had a motive to fabricate. The trial judge observed that the complainant’s evidence regarding the September 2018 incident was “reasonably detailed”, but that her claim that the appellant had assaulted and sexually assaulted her at other times was “devoid of any detail.” The trial judge noted that the complainant was “not meaningfully impeached.” He found that she was “at her strongest when confronted with a series of text messages”. The trial judge found that the complainant “responded quickly and decisively seemingly without thought as to whether her answers helped her cause or not.” When concluding his analysis of the complainant’s testimony, the trial judge stated that, “Overall I found her to be a credible witness.”
[15] The next section in the trial judge’s reasons is titled “Conclusion”. He started this section by stating that “[t]here were few flaws in the account given by Mr. [D.]” (emphasis added). This appears to contradict his earlier statement that he did not find the appellant to be a credible or reliable witness.
[16] The trial judge next found the appellant guilty of the September 2018 incident. In this context, he purported to rely on J.J.R.D.:
I have been asked though to consider that even where an accused testifies without obvious flaws, an outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. This is the essence of R. v. J.J.R.D.(2006), 2018 O.A.C. 37 (C.A.), at para. 53.
It is not enough that I might prefer the Crown evidence to that of Mr. [D.]. Credibility is not an either/or proposition; treating it as such “shifts the burden of proof to the accused by” suggesting that the accused can only be acquitted if the accused’s story is believed rather than that of the complainant” [see R. v. Smith 2020 ONCA 782 at para 36] in other words it is not a credibility contest. Instead, the evidence as a whole, must be so compelling as to leave me with no reasonable doubt.
As has recently been summarized in R v Kruk, 2024 SCC 7, [2024] SCJ No 7 the analysis of testimony is a difficult task.
I find that in September 2018 Mr [D.] was confronted by [the complainant] and her family with a series of credit card transactions. He was ashamed and embarrassed. He reacted violently upon their return [to] the residence and assaulted, threatened and sexually assaulted her. He will be found guilty of these three offences.
[17] While the trial judge found the appellant guilty of the charges arising from the September 2018 incident, he stated that he was not satisfied beyond a reasonable doubt that the appellant was guilty of the choking offence:
I have more difficulty with the November 2022 allegations. I found [the complainant] to be credible. I need to be sure that Mr [D.] is guilty. Although I do not rely on the evidence he called, like [the complainant] he was detailed and unshaken in his testimony in this one area. I must evaluate witnesses with the same degree of scrutiny. Although I do not necessarily believe his account, I am left with a reasonable doubt and therefore find him not guilty of Count 12.
D. issues and analysis
[18] The appellant submits that the reasons are insufficient for appellate review and that the trial judge improperly relied on J.J.R.D. in his credibility assessment. The appellant further submits that the trial judge misapprehended the evidence and that there was no evidentiary foundation for the uttering threats conviction.
a. Did the trial judge improperly rely on J.J.R.D. and were his reasons insufficient?
[19] I agree with the appellant that the trial judge’s reasons are not a model of clarity. In particular, there is an evident internal contradiction in the trial judge’s assessment of the appellant’s credibility; as reviewed above, in the analysis section of the trial judge’s reasons, he stated that he did not find the appellant credible or reliable, whereas in the conclusion he stated that there were “few flaws” in the appellant’s evidence. Relatedly, while he instructed himself to the contrary, the trial judge’s apparent reliance on J.J.R.D. suggests that he may have improperly treated the evidence of the appellant and the complainant as a credibility contest.
[20] The court is to take a functional and contextual approach in reviewing a trial judge’s reasons when those reasons are alleged to be insufficient: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69. Judges are presumed to know the law: G.F., at para. 74. Appellate courts are not to finely parse a trial judge’s reasons searching for errors. Appellate courts must assess whether, read in context and as a whole, in light of the live issues at trial, the reasons explain what the trial judge decided and why, in a manner that permits effective appellate review: G.F., at para. 69. A trial judge’s credibility findings deserve particular deference: G.F., at para. 81.
[21] In J.J.R.D., at para. 53, this court dealt with a claim of insufficient reasons. In that context, Doherty J.A. explained that the reasons were adequate for appellate review:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[22] In R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 32, Paciocco J.A. observed that J.J.R.D. was a sufficiency of reasons case and that it was not meant to offer an alternative reasoning path to the W.(D.) formula[2]:
J.J.R.D. was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W.(D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see J.J.R.D., at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance ... of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence” (emphasis added). The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis. It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [Citations omitted; emphasis in original.]
[23] More recently, in R. v. Berg, 2026 SCC 21, at para. 6, the Supreme Court observed that J.J.R.D. is often used by trial judges “to resolve situations where neither of two different testimonial accounts contain any frailties standing alone.” The Supreme Court cautioned that trial judges should not rely on J.J.R.D. when structuring their W.(D.) analyses because J.J.R.D. was a sufficiency of reasons case and not meant to be applied by trial judges themselves. The Supreme Court further cautioned that a misapplication of J.J.R.D. risks eroding the burden of proof by turning the trial into a credibility contest:
When invoked in a trial setting, J.J.R.D. may mislead the trier of fact to think that they may reject the accused’s account solely based on a “considered and reasoned” acceptance of the complainant’s testimony. This raises the spectre of turning trials into credibility contests – the very error W. (D.) was designed to prevent. The presumption of innocence means that a guilty verdict cannot rest only on whether the trier of fact believes the Crown’s evidence or finds it more plausible.
Instead, a conviction must always rest on proof beyond a reasonable doubt. And proof beyond a reasonable doubt demands more than a “considered and reasoned acceptance” of the complainant’s evidence. Indeed, in J.J.R.D., Doherty J.A. was characteristically careful in his formulation: a trial judge can reject an accused’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”… Read in full, this passage maintains that appellate courts should ensure that trial judges have considered the conflicting evidence – whether it is only the complainant’s testimony or also includes circumstantial evidence – and explained why it meets the high standard of proof beyond a reasonable doubt. It is not, by contrast, an invitation for trial judges to enter convictions solely based on a “considered and reasoned” acceptance of a complainant’s testimony. [Citations omitted; emphasis in original.]
[24] In this case, it is not possible to reconcile the trial judge’s statement that he saw “few flaws” in the appellant’s evidence with his earlier statement that he found that the appellant was not credible or reliable. This is not a nitpicky search for error. Rather, it is a fundamental contradiction in the trial judge’s reasons regarding his assessment of the appellant’s credibility.
[25] This contradiction does not allow this court to understand how the trial judge arrived at the conclusion that he had no reasonable doubt that the appellant committed the September 2018 offences. Did he reach this conclusion because he completely rejected the appellant’s evidence, and because the evidence as a whole, including the complainant’s evidence, left him with no reasonable doubt? While his finding that the appellant was not credible or reliable and his consideration of the complainant’s evidence might support such a conclusion, his statement that there were “few flaws” in the appellant’s evidence does not support such a conclusion.
[26] If the trial judge did not completely reject the appellant’s evidence, as suggested by his statement that there were “few flaws” in the appellant’s evidence, did the trial judge rely on J.J.R.D.to conclude that the complainant’s evidence and other evidence left him with no reasonable doubt about the appellant’s guilt? If so, while the trial judge recognized that he was not to engage in a credibility contest, he made no effort to explain why his assessment of the complainant’s evidence and the evidence as a whole, despite the “few flaws” in the appellant’s evidence, left him with no reasonable doubt regarding the appellant’s guilt with respect to the September 2018 incident. Rather, immediately following the paragraph referring to J.J.R.D., the trial judge made a conclusory finding of guilt without providing “a considered and reasoned acceptance beyond a reasonable doubt” of the complainant’s evidence and other evidence. Earlier in his reasons, the trial judge explained why he found the complainant to be a credible witness. However, if he in fact found that there were “few flaws” in the appellant’s evidence, he failed to explain why the complainant’s evidence was so compelling that it rose to the level of leaving him with no reasonable doubt. Accordingly, while the trial judge instructed himself not to treat the evidence of the appellant and the complainant as a credibility contest, the internal inconsistencies in the trial judge’s reasons make it impossible to ascertain that he did not ultimately treat their evidence as a credibility contest.
[27] To be clear, I do not want to suggest that, in light of the Supreme Court’s decision in Berg, it is necessarily an error for trial judges to refer to J.J.R.D. in their reasons. Clearly, it is best to avoid doing so and it is certainly an error for trial judges to view J.J.R.D as an alternative reasoning path to W.(D.). However, as mentioned above, the role of appellate courts is not to finely parse a trial judge’s reasons in search of error. Rather, the task of appellate courts is to ensure that trial judges apply the burden of proof correctly and that it is possible to discern from their reasons that they have done so.
[28] In this case, the conflict in the trial judge’s reasons makes it impossible to discern how the trial judge arrived at his finding of guilt and, most importantly, to be satisfied that he did not treat the evidence of the appellant and the complainant as a credibility contest.
b. Other issues
[29] Given that I have concluded that the trial judge’s reasons are insufficient for appellate review, it is not necessary to consider the other grounds of appeal.
E. disposition
[30] I would allow the appeal and order a new trial.
Released: August 13, 2026 “L.F.”
“L. Favreau J.A.”
“I agree. M. Rahman J.A.”
“I agree. Osborne J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
2R. v. W.(D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521.