COURT OF APPEAL FOR ONTARIO
Trotter, Monahan and Dawe JJ.A.
BETWEEN
His Majesty the King
Respondent
and
B.B.
Appellant
Michelle Psutka, for the appellant
Manasvin Goswami, for the respondent
Heard: February 25, 2026
On appeal from the convictions entered by Justice Robert Pelletier of the Superior Court of Justice, on January 13, 2022, and from the sentence imposed on October 18, 2022.
[1] The appellant, B.B., was convicted at trial of incest and sexual interference.[2] The charges were based on his daughter S.B.’s evidence that on February 19, 2019 he touched her vagina with a vibrator, and then had sexual intercourse with her. He was sentenced to six years’ imprisonment and subjected to various ancillary orders, including a lifetime Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) registration order. He appeals against his convictions, and also seeks to have the lifetime SOIRA registration order reduced to 20 years as a remedy pursuant to the Charter of Rights and Freedoms.[3]
[2] The appellant advances several grounds of appeal against his convictions. He also seeks to adduce fresh evidence of S.B.’s post-trial recantation. As I will discuss, S.B. has not recanted her evidence that she was sexually assaulted, but now maintains that the perpetrator was a different man. During her oral submissions, the appellant’s counsel clarified that she only seeks to adduce S.B.’s post-trial statements as fresh evidence that impeaches her testimonial credibility and reliability, not as evidence that her new account is true.
[3] For the following reasons, I would not give effect to any of the appellant’s grounds of appeal against his convictions, and would not admit his proposed fresh evidence. Accordingly, I would dismiss his conviction appeal. However, the Crown agrees that the lifetime SOIRA registration order should be reduced to 20 years, and I would grant the appellant this remedy.
I. Factual background
[4] In the summer of 2018, the appellant and his family – his wife M.G., and their two children, S.B. and her older brother – moved to a town in eastern Ontario. S.B., who was then 14 years old, testified that the move had been partly motivated by her father’s ongoing drug problems in the community where they had been living, but that he continued to use drugs after the move.
[5] M.G.’s mother and sister both already lived in the community where the family moved. For the first few months after the move the appellant and M.G. stayed mainly at M.G.’s mother’s house, while the children stayed with M.G.’s sister, who lived nearby. In November 2018 the family moved to their own house.
1. Evidence regarding the February 19, 2019 incident
[6] S.B.’s evidence at trial was that on February 19, 2019, she took the bus home from school and arrived home shortly after 2:45 p.m. Her father was the only person at home, and she joined him in his bedroom to smoke a cigarette. He asked if she wanted to try something new, and they smoked a white substance together. The appellant said it was “shatter”, which S.B. believed was a form of cannabis. However, the appellant regularly smoked crack cocaine, and subsequent drug testing conducted the next day revealed the presence of cocaine metabolites in S.B.’s blood and urine, suggesting that the white substance she and her father smoked together was actually cocaine.
[7] The appellant then played what S.B. described as a pornographic video featuring a man in a cage. He then asked S.B. to put on her mother’s lingerie and pose on the bed while he took photos using her phone. The appellant then touched S.B.’s vagina, both with his fingers and with a pink vibrator, and had her touch his penis. He then climbed on top of her and had vaginal intercourse with her. She told him to stop, but he kept saying that it was okay.
[8] The appellant stopped when his phone rang. He ignored the first call but when his phone rang again he got up and answered it. S.B. could tell from the ringtone that the calls were from her grandmother’s phone. It was an agreed fact that the appellant was using his wife’s M.G.’s phone that day, and M.G. testified that she had been using S.B.’s grandmother’s phone. S.B. went to take a shower, testifying that she recalled seeing that the clock on the kitchen stove showed that the time was now almost 4:00 p.m. (However, photos of the kitchen showed that the stove did not actually have a clock). When S.B. got out of the shower her father was gone, and she believed he had gone to pick up her uncle from work. She later deleted from her phone the photos the appellant had taken of her posing on the bed.
[9] It was an agreed fact that phone records showed that S.B.’s uncle had called the appellant at 3:14 p.m. and 3:29 p.m., and that the appellant then called him back at 3:32 p.m. and 3:39 p.m. These same phone records also showed that there was a gap in the appellant’s frequent text messaging between 2:45 p.m. and 3:41 p.m.
[10] M.G. testified that she had gone out of town that day to take her mother to a medical appointment. During the drive back she had called the appellant at 2:45 p.m. and heard S.B. in the background saying that she was taking a shower. The appellant then picked up M.G. and her mother from her mother’s house at around 3:30 p.m.
[11] The next day, a teacher noticed S.B. crying in the hallway at school. She was with her brother, who convinced S.B. to tell the teacher why she was crying. S.B. told the teacher that last night she had gotten high with her dad on weed and shatter and that he took advantage of her. The teacher reported this to a guidance counsellor, which led to S.B. having a medical examination, during which samples of her blood and urine were taken. Testing of these samples showed the presence of benzoylecgonine, indicating prior consumption of cocaine by S.B.
[12] The following day S.B. made statements to the police in which she described the events of February 19, 2019. She also alleged that her father had touched her sexually once before, in October 2018. The appellant was criminally charged based only on S.B.’s allegations about what had happened on February 19, 2019. The police laid no charges based on her allegations about the earlier October 2018 incident.
[13] The defence brought a pre-trial application seeking to adduce evidence that S.B. had made the October 2018 allegation, which the defence maintained was demonstrably false. The trial judge’s ruling dismissing this application is the subject of the appellant’s first ground of appeal.
[14] In December 2019, S.B. called the appellant’s lawyer at the time and left a voicemail message in which she said that she had made the allegations against her father because she thought it would help with his drug addiction, but that “it went too far” and she had “made a mistake”. At trial, she testified that her father had pressured her to make this call, and had given her his lawyer’s phone number. S.B. added that she later lied to the police and claimed to have found the lawyer’s phone number online because she did not want to get her father into trouble.[4]
[15] DNA testing showed that the appellant’s DNA was on a swab taken from S.B.’s external genitalia, along with another unknown male’s DNA. There was no male DNA detected on an internal vaginal swab. Testing of a pink vibrator that the police seized from the residence showed that the vibrator had both S.B. and the appellant’s DNA on it, and that the appellant’s DNA most likely came from sperm cells.
[16] M.G. testified that this vibrator was one of a collection that she kept in either a dresser or in the bedroom closet, which she often used when having sex with the appellant. She regularly cleaned her sex toys, and her DNA was not found on the vibrator. S.B. acknowledged at trial that she had previously used some of her mother’s other sex toys, but she denied ever doing so at the residence where the family was living in February 2019, or having ever borrowed the pink vibrator.
[17] The appellant did not testify at the trial proper, although he testified at the voir dire with respect to the admission of the October 2018 allegation.
2. The trial judge’s reasons
[18] The trial judge rejected certain aspects of S.B.’s evidence as unreliable. However, while noting that corroboration was not required, he found that her account of the appellant’s actions on February 19, 2019 was confirmed in three respects.
[19] First, the trial judge noted the gap in the appellant’s text message records between 2:45 p.m. and 3:41 p.m., which coincided with when S.B. said she had been in the bedroom with her father. Second, he found that the presence of cocaine metabolites in S.B.’s blood and urine tended to confirm her account of smoking a white substance with her father, noting that M.G. had acknowledged that she and the appellant sometimes smoked crack cocaine together. Third, the trial judge found that the presence of both the appellant’s and S.B.’s DNA on the pink vibrator was “corroborative of the complainant’s evidence and in light of the entire evidentiary record, confirmatory of a sexual assault having been committed as described on the day in question.” He attributed less significance to the presence of the appellant’s DNA in the swab from S.B.’s external genitalia, having regard to the possibility of “transfer through indirect contact in terms of family members in the same general location”.
[20] The trial judge accordingly substantially accepted S.B.’s evidence about what had happened with her father on February 19, 2019, and found the appellant guilty of incest, sexual assault, and sexual interference (Counts 1 to 3). He acquitted the appellant of a fourth charge of making sexually explicit material available to a child (Criminal Code, R.S.C. 1985, c. C-46, s. 171.1(1)(b)), explaining that he had a reasonable doubt about whether the appellant had shown S.B. the pornographic video “specifically to facilitate” the commission of the sexual offences that the appellant went on to commit.
B. Analysis
- The trial judge’s refusal to let the defence adduce evidence regarding the alleged October 2018 incident
[21] The appellant’s first ground of appeal is that the trial judge erred by refusing to admit evidence about the additional complaint S.B. had made against her father in her police statements. S.B. had told the officers that her father had also sexually assaulted her once before in around October 2018, a few months before the February 19, 2019 incident. No charges were laid based on this allegation. The defence sought to adduce both evidence that S.B. had made this allegation and evidence contradicting it, in order to undermine her credibility.
a. The s. 276 voir dire
[22] The proposed defence evidence was previewed during a voir dire, as part of an omnibus defence application under s. 276 of the Criminal Code.[5]
[23] In her February 21, 2019 statements, S.B. told the police that a few months earlier her mother and aunt had gone out together, and she and her father had spent the night at her aunt and uncle’s house. She had been sharing a bedroom with one of her cousins, while her father was sleeping in her other cousin’s room. That cousin was away, spending the night at their grandmother’s residence.
[24] At around 3:00 a.m., S.B.’s father came to her room, said he had been having nightmares, and asked if she would join him in his bed. S.B. agreed. It was cold, and her father told S.B. “to take [her] clothes off because it’d be warmer”. He then began rubbing her leg and her “underwear over [her] vagina”. When S.B. objected, her father said that it was okay because her mother “does this” with her older brother. He then offered to pay her, and S.B. replied: “You can’t pay your daughter to have sex with you. And do this with you. It’s not right”. The appellant said “Okay”, and S.B. put her pajamas back on and went back to the other bedroom.
[25] S.B. initially told the interviewing officer that she thought this incident had been in October, and that her mother and aunt had been “out having a party”. At the end of the interview, in response to follow-up questions from the officer, S.B. named a specific show that her mother and aunt had gone to see together. S.B. added that she thought that her mother had also slept over at her aunt and uncle’s house when she returned from the show, because her mother was there when S.B. woke up the next morning.
[26] The police interviewed S.B.’s mother, aunt, uncle, and grandmother, who all contradicted S.B.’s evidence about the sleeping arrangements on the night of the show. They all maintained that on the night of the show, which they identified as having been on October 24, 2018, the appellant and S.B.’s mother had both slept at S.B.’s grandmother’s house, while S.B. had slept at her aunt and uncle’s house. The police ultimately did not lay any charges based on S.B.’s October 2018 allegation.
[27] S.B.’s mother M.G. and S.B.’s aunt and uncle all testified on the s. 276 voir dire, as did the appellant.[6] They all reiterated that the appellant and M.G. had slept at S.B.’s grandmother’s residence on the night of the show. However, the appellant acknowledged that he and M.G. had slept over at S.B.’s aunt and uncle’s house “once or twice”.
b. Argument
[28] The trial judge relied on R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] S.C.C.A. No. 26, where in a brief oral decision this court held that cross-examination directed at establishing “a pattern of fabrication by the complainant of similar allegations of sexual assault against other men” was something that “should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.” The trial judge concluded that the evidence adduced on the voir dire did not establish that S.B.’s account of the October 2018 incident was “demonstrably false”, in the sense of being “undeniably untrue”.
[29] The appellant contends that the trial judge erred by reaching this conclusion. Specifically, he argues that the requirement in Riley that the defence be “in a position” to establish the demonstrable falsity of a complainant’s other allegation can be satisfied by the defence showing that it intends to adduce evidence that could lead the trier of fact to find that the other allegation is false. He distinguishes the situation here from that in R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115 on the basis that the accused in M.T. did not intend to call any witnesses who might establish the falsity of the other allegations. As the appellant argues in his factum:
[B]ecause defence counsel was in a position to establish the falsity of the October 2018 allegation through the proposed cross-examination and evidence, she should have been permitted to do so. Unlike M.T., this was not a case where the defence had no intention of demonstrating falsity. It would be a misreading of Riley and subsequent case law to hold that defence counsel had to prove that the October 2018 allegation was false at the voir dire, rather than simply that she was in a position to do so at trial. [Emphasis in original.]
[30] The appellant also emphasizes that unlike in Riley, and in most of the subsequent cases where this court has applied Riley, he was seeking to establish that S.B. had made a false allegation against him, rather than against a third party.
[31] Riley was recently considered by the Newfoundland and Labrador Court of Appeal in R. v. Regular, 2026 NLCA 1. The majority allowed the Crown’s appeal from the accused’s acquittal, finding that the evidence of the complainant’s allegations against a third party should not have been admitted. Writing for the majority, Knickle J.A. interpreted the “demonstrably false” standard in Riley as requiring the accused to positively establish the falsity of the allegations on the admissibility voir dire. She observed at para. 58:
In the absence of evidence like a recantation, it may be very difficult to prove that allegations are false. If it is only necessary to establish that allegations “may” be false because of inconsistencies to be admissible, this will result in a complainant being subjected to having the veracity of the allegations tested as if she were at trial for those allegations. Evidence that only illustrates that a complainant is incorrect on certain details, such as timing or location, is not evidence that a complainant fabricated allegations.
[32] Noel J.A. dissented, in part because he disagreed with the majority’s interpretation of the “demonstrably false” standard in Riley. Citing the Supreme Court of Canada’s decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, he stated, at para. 236:
The “demonstrably false” standard must … be consistent with the Supreme Court of Canada’s statement in Arp that “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’”. [Citations omitted; emphasis in original.]
[33] However, Noel J.A. agreed with the majority that the “demonstrably false” standard sets a “high bar” and that “the indicia of falsity must be compelling and significant”: Regular, at paras. 234-35, per Noel J.A. (dissenting).
[34] The Newfoundland and Labrador Court of Appeal’s decision in Regular has been appealed as of right to the Supreme Court of Canada, and the appeal is scheduled to be heard on November 2, 2026.
[35] Until the Supreme Court provides further guidance on this issue, I continue to be bound by this court’s prior decisions that have interpreted and applied Riley. This court has explained the rule in Riley as rooted in the collateral fact rule: Riley, at pp. 152-154; R. v. B. (A.R.) (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (C.A.), at p. 367, aff’d 2000 SCC 30, [2000] 1 S.C.R. 781; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 63. As Rosenberg J.A. explained in R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 516:
The effect of the collateral fact rule is that, subject to certain exceptions, a party is not entitled to introduce extrinsic evidence to contradict the testimony of an adversary’s witness unless that extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness.
[36] Applications of the collateral fact rule involve “the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect”: B. (A.R.), at p. 367. As Trotter J.A. observed in R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 87:
Because the collateral facts rule is intertwined with trial management considerations, trial judges exercise considerable discretion in its application, which is entitled to deference. [Citation omitted].
[37] The collateral fact rule is a rule of general application, not one limited to sexual offence prosecutions or sexual assault allegations: see e.g. R. v. Strojny, 2019 ONCA 329, at paras. 61-67. However, Riley is most often cited and relied on cases where, as here, an accused person charged with sexual offences seeks to prove that the complainant made false sexual assault allegations on other occasions. In this context, the accused’s ability to adduce evidence of other sexual activity by the complainant is regulated by s. 276 of the Criminal Code, which also requires trial judges to balance the probative value of evidence against its prejudicial effect: see s. 276(2).
[38] Riley was not decided under s. 276, and this court has previously held that “resort to s. 276 is not necessary” in situations where Riley applies: see B. (A.R.), at p. 365. However, in cases where s. 276 does apply there is no need for trial judges to conduct a separate Riley analysis, since the relevant factors under Riley must also be considered in the s. 276 analysis, along with the other factors listed in s. 276(3).
[39] The appellant’s counsel on appeal, Ms. Psutka, who was not his trial counsel, argues that it was unnecessary for the defence to have brought a s. 276 application in this case. She relies on this court’s statement inM.T., at para. 34, that “[q]uestions that focus on the fact, rather than the details, of an allegation of sexual assault are not prohibited by the section”. See also R. v. Green, 2013 ONCA 74, at para. 1. In response, the Crown argues that these cases have been overtaken by later statutory amendments and decisions.
[40] It is not strictly necessary to resolve this dispute, since Ms. Psutka does not suggest that it was a reversible error for the trial judge to have dealt with the issue on the basis that it had been framed and put before him by the defence. However, I agree with Mr. Goswami, for the Crown, that the law has changed since the cases relied on by the appellant were decided. In particular, s. 276(4), which was added to the Criminal Code in 2018, now defines “sexual activity” to include any communication “whose content is of a sexual nature”. In R. v. Kinamore, 2025 SCC 19, 503 D.L.R. (4th) 385, at para. 65, the Supreme Court of Canada interpreted this definition as including “any communication from the complainant in which sex is a topic of conversation” (emphasis in original), including communications about sexual inactivity. It is difficult to see how an allegation of sexual assault, whether true or false, would not be captured by this broad definition.
[41] The trial judge gave several reasons for excluding the proposed evidence regarding S.B.’s October 2018 allegation. First, while he accepted that the evidence showed that “the opportunity … likely did not exist for [B.B.] to commit the October 2018 acts”, he was not satisfied that S.B.’s October 2018 allegation had “been shown to be demonstrably false”. Second, the trial judge explained:
[T]he upshot of allowing the application would be to create two trials, one in relation to the events of February and one in relation to the events of October, when none of the parties would be properly equipped and situated to litigate the October events as it were, having regard to everything from further investigation to disclosure, to further questions of the complainant, and everything that that might entail.
[42] Third the trial judge held that excluding the October 2018 allegation evidence would not prevent the defence from advancing the theory that S.B. had a motive to fabricate allegations against her father in order to force him to get help for his drug problem.
[43] I am not persuaded that the trial judge improperly exercised his discretion by excluding the evidence of S.B.’s October 2018 allegation. Although the trial judge accepted that the defence evidence contradicted S.B.’s recollection that her father had slept at her aunt and uncle’s house on the night that her mother and aunt went to the show, it did not follow that S.B.’s allegation of sexual touching was necessarily false. The appellant acknowledged that he had slept at the aunt and uncle’s house on other occasions, and a trier of fact could reasonably have concluded that S.B. was simply mistaken about the date of the incident. As Fairburn A.C.J.O. observed in R. v. G.G., 2025 ONCA 574, 117 O.R. (3d) 721, at para. 68:
It is not uncommon – in fact, some might say it is common – for a complainant in a sexual assault trial to be mistaken about peripheral matters, including the specific day, week, month or even year of the alleged offence, not to mention the hour at which the alleged offence took place.
[44] The trial judge had to balance the limited probative value of the proposed evidence against its prejudicial effect, including any “prejudice to the trial process”: B. (A.R.), at p. 367. In the circumstances here, he was entitled to conclude that litigating the veracity of S.B.’s October 2018 allegation would unduly complicate the proceedings. As he put it in his reasons, “the risk … is that this trial would spawn a sub-trial which would be the proof or disproof of the October 2018 events.” This was a discretionary trial management decision for him to make, and one that is entitled to appellate deference. I am not persuaded that any basis has been shown for interfering with his case-specific determination.
2. The complainant’s inconsistent evidence regarding penetration
[45] The appellant’s second ground of appeal is that the trial judge failed to properly grapple with S.B.’s inconsistent evidence about the extent to which the appellant penetrated her vagina with his penis during the February 19, 2019 incident. During her evidence in chief, S.B. testified that the appellant’s penis “went in just like an inch, not even half.” In cross-examination S.B. initially reiterated that the appellant did not fully penetrate her and only “went like half”. However, she then changed her evidence and testified that “he went fully inside”, explaining that she now recalled this because she “remember[ed] that it hurt”. S.B. also estimated in cross-examination that this went on for “more than five minutes, but … less than ten minutes”.
[46] While the appellant correctly notes that sexual intercourse is an essential element of the offence of incest, s. 4(5) of the Criminal Code also provides that “sexual intercourse is complete on penetration to even the slightest degree”. Accordingly, it was not essential for the trial judge to determine the precise extent to which penetration had occurred. Rather, S.B.’s inconsistency on this point was important only to the extent that it might cast doubt on the credibility or reliability of her evidence as a whole.
[47] It was up to the trial judge to decide how much importance to attach to this inconsistency. He recognized that there were “a number of significant inconsistencies in the complainant’s evidence” that had been “highlighted by the defence”, and which were “worthy of very careful consideration.” However, he went on to explain why he did not “consider them to be fatal to her credibility generally”, having particular regard to the other evidence that confirmed significant aspects of S.B.’s account.
[48] Although the trial judge did not specifically mention S.B.’s changing testimony about the depth of the vaginal penetration when he listed some of the inconsistencies in her evidence, he was not obliged to “explicitly refer to each of the inconsistencies asserted by the defence”: R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52 at para. 48. In my view, his reasons as a whole make it clear why he was satisfied beyond a reasonable doubt that the appellant had committed the offences charged in Counts 1, 2 and 3, and enable meaningful appellate review of his decision.
3. Alleged errors regarding the phone records and DNA evidence
[49] The appellant’s next argument is that the trial judge erred in his assessment of two of the bodies of evidence that he found were confirmatory of S.B.’s allegations: (i) the phone records, and (ii) the evidence of DNA found on the vibrator.
[50] With respect to the phone records, the appellant argues that the trial judge erred by attaching significance to the 27-minute gap in the appellant’s phone usage between 2:47 p.m. and 3:14 p.m., because there were a number of comparable gaps at other times during the day.
[51] In my view, the trial judge correctly understood both the potential significance and the limitations of this evidence. According to S.B., her father did not use his phone for the first half hour after she got home from school. The trial judge recognized that if the phone records had contradicted S.B. on this point, her testimony “would have been exposed at the very least as quite unlikely.” As it was, the gap in the appellant’s phone records provided some confirmation of at least this one aspect of S.B.’s account: namely, that she was with her father, and that he was not using his phone.
[52] As the trial judge correctly noted:
The phone records and the period of inactivity revealed do not corroborate that a sexual assault was committed. However, they stand as very compelling evidence of the opportunity which existed and the inactivity of the accused in relation to his phone at that particular time.
[53] The fact that there were other times of the day when the appellant also did not use his phone for similarly long stretches did not undermine the trial judge’s reasoning process.
[54] With respect to the DNA evidence, initial testing of a swab from the pink vibrator showed DNA from a single female source, which could not be excluded as S.B. to an extremely high degree of probability. After the sample was exposed to “more aggressive chemicals” capable of breaking down the cellular membrane of sperm cells, further testing showed a mixture of DNA from a female and a male. It could be inferred from the male DNA only revealing itself during the second test that it was from sperm cells.
[55] The female contributor to the mixed DNA again could not be excluded as S.B., while the male contributor could not be excluded as the appellant, both to very high degrees of probability. The expert witness from the Centre of Forensic Sciences who testified at trial explained that the samples contained “a lot of female DNA”: more than would be expected “from just handling or brief contact”, and that “more likely” came from bodily fluid. In contrast, there was only a “very trace amount” of male DNA from sperm cells in the sample.
[56] The trial judge agreed with the defence that the presence of the appellant’s sperm cells on the vibrator was a neutral fact, having regard both to S.B.’s evidence that the appellant did not ejaculate during the sexual assault, and M.G.’s testimony that she and the appellant regularly used the vibrator during their own sexual activity. However, he treated the presence of S.B.’s DNA on the vibrator as “corroborative of the complainant’s evidence and in light of the entire evidentiary record, confirmatory of a sexual assault having been committed as described on the day in question.”
[57] The appellant contends that the trial judge’s treatment of this evidence was internally inconsistent. Essentially, his argument is that once the trial judge accepted that the appellant’s DNA could have remained on the vibrator as a result of his sexual activity with M.G., despite M.G.’s evidence that her practice was to clean her sex toys after use – which was confirmed by the fact that none of her own DNA was found on the vibrator – the trial judge should not have ruled out the possibility that S.B. could also have left her own DNA on the vibrator on an earlier occasion.
[58] I would not give effect to this argument. It was undisputed that the swab from the vibrator did not include any detectable quantities of M.G.’s DNA, and had only trace amounts of the appellant’s DNA, from a very small number of his sperm cells. It was a reasonably available inference that M.G.’s cleaning must have removed her own DNA from the device, but that a small quantity of the appellant’s sperm might possibly have survived the cleaning process. It was also a reasonably available inference that S.B.’s DNA, which was found on the vibrator in large quantities, must have been deposited after the last time M.G. cleaned the toy, since she had cleaned it thoroughly enough to remove all observable traces of her own DNA. There was no evidence that S.B. had ever used this particular vibrator before – something she denied – or that she had borrowed any of her mother’s sex toys in the recent past.
[59] In these circumstances, it was open to the trial judge to treat the presence of large quantities of S.B.’s DNA on the vibrator as confirming her account that the appellant had used the toy on her during the February 19, 2019 sexual assault. Importantly, it was not essential to the trial judge’s conclusion that he make a positive finding about when the appellant’s DNA was deposited on the vibrator, since if his sperm cells were left on the toy after M.G. last cleaned the toy, this would not have been exculpatory. The trial judge was entitled to treat the presence of the appellant’s DNA on the vibrator as a neutral fact, but rely on the presence of S.B.’s DNA as a factor supporting the conclusion that she was telling the truth about what had happened on February 19, 2019.
4. Fresh evidence
[60] The appellant also seeks to have his convictions set aside on the basis of fresh evidence of S.B.’s post-trial recantation. S.B. now claims that the perpetrator of the February 19, 2019 sexual assault was not her father, but a different man. Somewhat unusually, the appellant is not seeking to have S.B.’s new account admitted for its truth, but only as fresh evidence that bears on the credibility of her inculpatory trial testimony.
a. The proposed fresh evidence
[61] The appellant was convicted in January 2022. More than a year later, in February 2023, S.B. contacted the lawyer who at that time was representing the appellant on his appeal (not Ms. Psutka). S.B. told counsel that she now “realized that it wasn’t [my] dad that did it”, and that it was actually “one of his buddies that was over that day.” S.B. also said that she had blamed her father because she “wanted him to get help … with his addiction.”
[62] The appellant’s current appellate counsel, Ms. Psutka, retained a private investigator, who conducted interviews of S.B., her mother, and her aunt in June 2023. S.B. told the private investigator that she now recalled that when she got home from school on February 19, 2019 her father had been with “one of his buddies, Sam”, who was a frequent visitor to the house. Her father then left to pick up her uncle from work. S.B. told the private investigator that events in the bedroom then unfolded essentially as she had described them at trial, except that on her new account it was Sam, not her father, who had used the vibrator on her and then had intercourse with her.
[63] S.B. also told the private investigator that she had first realized that the perpetrator was not her father “almost a year ago”. However, she also said that she had lied to the police and blamed her father because she thought sending him to jail would get him off drugs.
[64] S.B.’s aunt told the private investigator that Sam was a friend who had previously rented a room from her. S.B. and her mother had also both mentioned Sam during their trial testimony. S.B. had testified that she remembered Sam being at the house later that night, while her mother had testified that Sam had been at the house earlier that day, when she had called the appellant at 1:00 p.m., and that he had then been waiting outside the house when she arrived home at around 4:30 p.m.
b. Analysis
[65] The test for admitting fresh evidence on appeal is well-established: see Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 45. As summarized in Snyder, at para. 45, citing Truscott, at para. 92, the admissibility inquiry can be distilled into three questions:
Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]
Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]
What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry]
[66] As usual in post-trial recantation cases, there is no dispute that the evidence of S.B.’s changed account of the February 19, 2019 sexual assault satisfies the first and third criteria: it is admissible under the rules of evidence, and it was not available at the time of the appellant’s trial. Its admissibility as fresh evidence thus turns on the cogency requirement.
[67] In Truscott, at para. 100, this court described the cogency analysis as follows:
The cogency inquiry requires a qualitative assessment of the evidence proffered on appeal. That evaluation must measure the probative potential of the evidence considered in the context of the entirety of the evidence admitted on appeal and heard at trial. If the fresh evidence considered in this context could reasonably be expected to have changed the result at trial, the evidence is sufficiently cogent to justify its admission on appeal…
[68] Recantations by a witness can satisfy the cogency requirement in two different ways: either on the basis that the recantation “is reasonably capable of belief and therefore admissible as substantive evidence”, or “in the sense that it can be used to impeach [the witness’s] trial testimony”: R. v. Kassa, 2013 ONCA 140, 296 C.C.C. (3d) 353, at para. 95, leave to appeal refused, [2013] S.C.C.A. No. 283; see also Snyder, at paras. 46, 51.
[69] Here, the appellant is not seeking to have S.B.’s new account admitted as substantive evidence that the man who sexually assaulted her on February 19, 2019 was actually Sam, rather than the appellant. Rather, the appellant only seeks to introduce S.B.’s recantation on the basis that it shows her to be “an incorrigible liar”, and thus casts doubt on the veracity of her trial testimony in which she named him as the perpetrator.
[70] As Doherty J.A. explained in Snyder, at paras. 53-54:
A recantation can have impeachment value even if it is not believed. Indeed, a demonstrably false recantation can have impeachment value. I agree with the comment of Commissioner Kaufmann in his report on the Commission of Proceedings Involving Guy Paul Morin (1998), at pp. 1174-5:
The focus should not be placed only on the believability of the recantation, but also upon the believability of [the witness’s] original testimony, given the recantation. [Emphasis added.]
As observed by Commissioner Kaufmann, the believability of the recantation is not the “only” question when its impeachment value is in issue. That is not to say, however, that the credibility of the recantation is irrelevant. In determining whether the recantation has sufficient impeachment potential to merit its admission on appeal, the appeal court must determine what a trier of fact could reasonably make of the recantation in its assessment of the credibility of that witness’s trial testimony. The credibility of the recantation is relevant to that assessment. Sometimes, the falsity of the recantation may enhance its potential impeachment value. In other circumstances, a finding that the impeachment is palpably false may neutralize the impeachment potential of the recantation. The impact of the falsity of the recantation on its impeachment value will depend on the totality of the circumstances, including any explanation offered for the recantation and the extent to which the recantation is supported by either the trial evidence or other evidence offered on appeal.
[71] During her oral submissions, Ms. Psutka frankly and fairly acknowledged that she is not relying on S.B.’s new account as substantive evidence that Sam was actually the perpetrator. I agree that S.B.’s new version of events is neither credible nor reliable, for multiple reasons.
[72] To give just one example, S.B. has made inconsistent statements about whether she first realized that the perpetrator was Sam only some months after the appellant’s trial, or whether she knew this all along but falsely accused her father because she believed sending him to jail would help him address his drug problem.
[73] In my view, neither of these scenarios is plausible. It is undisputed that the day after the sexual assault S.B. told some of her closest confidantes that the perpetrator was her father, before she said the same thing to school authorities and to the police. Even accepting that she was impaired by drugs during the sexual assault, it is difficult to imagine that she would have almost immediately become confused about the identity of the perpetrator, and have only realized her mistake years later.
[74] S.B. told the private investigator that she now believes the perpetrator was Sam because she has been having dreams in which:
I can see it happening … [b]ut its not [my father] I see … doing it. And I know like it’s not him because he, he never do anything like that.
Even if I were to accept that S.B. is telling the truth about these dreams, and also accept that she now honestly believes that Sam was the perpetrator, I would not be persuaded that her dreams reliably reflect what really happened to her.
[75] Conversely, the alternative scenario in which S.B. consciously made a false accusation against her father in order to get him help for his drug habit is difficult to square with the events that led to her making a police complaint. As the Crown notes in its factum:
Instead of going to the police or a teacher directly to report the crime, she is found crying in a school hallway the next day and has to be “convinced” by her brother to tell a teacher what happened.
[76] I accordingly agree with Ms. Psutka’s concession that S.B.’s new account is insufficiently cogent to be admitted as fresh evidence for its truth.
[77] The remaining question is whether S.B.’s recantation has sufficient impeachment value to justify admitting it as fresh evidence on appeal. It is not enough that it have “some potential probative value”: Snyder, at para. 50. What matters is whether, considered qualitatively, the evidence that S.B. has now given a new and different version of events that contradicts her trial testimony “could reasonably be expected to have changed the result at trial”: Truscott at para. 100.
[78] In my view, the impeachment value of the fresh evidence in this case does not rise to this level of cogency. I reach this conclusion for two main reasons.
[79] First, S.B. has not recanted her evidence that she was sexually assaulted on February 19, 2019. The only part of her account that has changed is her claim about who committed the sexual assault. The appellant accepts that her new account identifying the perpetrator as Sam is not credible. The same reasons for skepticism about the veracity of her new evidence would apply if she had named some different person.
[80] The only other possibility is that S.B. is making up her allegation that she was sexually assaulted by anyone. That is, after falsely accusing her father, she has now for some reason chosen to falsely accuse another man, rather than admitting that the entire story is a fabrication.
[81] However, this possibility is undermined by the evidence that confirms at least some aspects of S.B.’s evidence about the surrounding events. She evidently did consume cocaine on or around that date. There is no reason to question her evidence that she did so with her father, a regular crack cocaine user.
[82] The DNA evidence also strongly supports the conclusion that S.B. must have used her mother’s pink vibrator at some point after her mother last cleaned it. While it is conceivable that S.B. might have used it on her own, and then falsely accused her father of using the vibrator on her during the sexual assault, it is implausible that she would now maintain the lie about being sexually assaulted merely out of embarrassment about having borrowed her mother’s sex toy when she was a teenager, now more than seven years ago. This is particularly true since she has always frankly acknowledged borrowing some her mother’s other sex toys on other occasions.
[83] Second, there are strong reasons to look askance at S.B.’s underlying reasons for now seeking to exculpate her father. It is clear from her various post-trial statements that she loves and misses him, and feels responsible for his incarceration. She may well also feel blamed and shunned by her family. It is also possible that S.B. was truthful when she told the private investigator that she has had dreams in which she imagines being sexually assaulted by someone else, and she may honestly now believe that these dreams are a true memory. However, viewed in the context of the evidence as a whole, I am not persuaded that a reasonable trier of fact who was provided with the evidence of S.B.’s new post-trial account would come to a different conclusion than the trial judge reached, and be left with a reasonable doubt about the appellant’s guilt.
[84] I would accordingly not admit the fresh evidence.
5. The lifetime SOIRA order
[85] When the appellant was sentenced on October 18, 2022, the trial judge imposed a lifetime SOIRA registration order, as he was then obliged to do by s. 490.013(2.1) of the Criminal Code, because the appellant had been convicted of more than one designated offence. Ten days later, in R. v. Ndhlovu, 2022 SCC 38, [2022] 3 S.C.R. 52, the Supreme Court of Canada struck down s. 490.013(2.1) as unconstitutional.
[86] This court has previously held that SOIRA registration orders may not be appealed under the Criminal Code’s sentence appeal provisions: R. v. R.P., 2018 ONCA 473. However, we have also held that we have jurisdiction to reduce a lifetime SOIRA registration order imposed under the struck down provision as a s. 24(1) Charter remedy in cases where the offender has filed a notice of constitutional question: see R. v. Rule, 2023 ONCA 31, at para. 11; R. v. G.H., 2023 ONCA 89, at para. 45; R. v. G.B., 2024 ONCA 757, at para. 8. The appellant has filed a notice of constitutional question, and the Crown agrees that in the circumstances here it would be in the interests of judicial economy for us to grant the reduction, rather than requiring him to bring an application to the trial court under s. 490.05 of the Criminal Code.
[87] I would accordingly grant the appellant the s. 24(1) Charter remedy he seeks, and reduce his SOIRA registration order to 20 years.
C. Disposition
[88] In the result, I would dismiss the appellant’s motion to adduce fresh evidence, and dismiss his conviction appeal. I would grant the appellant’s application for a s. 24(1) Charter remedy and would reduce the lifetime SOIRA registration order imposed at trial to 20 years.
[89] Although in his notice of appeal the appellant sought leave to appeal sentence, he did not pursue his sentence appeal, either in his factum or in oral argument. As I have discussed, the appellant’s challenge to the SOIRA registration order is not part of his sentence appeal. I would accordingly dismiss the sentence appeal as abandoned.
Released: August 14, 2026 “G.T.T.”
“J. Dawe J.A.”
“I agree. Gary Trotter J.A.”
“I agree. P.J. Monahan 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.
2The appellant was also found guilty of sexual assault, but this charge was conditionally stayed pursuant to Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
3The appellant’s notice of appeal indicates that he is also seeking leave to appeal his sentence, but he has not pursued the sentence appeal.
4The Crown did not seek to have S.B.’s evidence about her father pressuring her to call his lawyer admitted as post-offence conduct by the appellant.
5The defence also applied for leave to cross-examine S.B. about whether she had previously watched the pornographic video she described her father playing during the February 19, 2019 incident. The Crown took no position on this part of the application, which the trial judge granted.
6S.B.’s grandmother also testified on the voir dire, but was not asked any questions about the October 2018 incident.