COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O., Roberts and Rahman JJ.A.
BETWEEN
His Majesty the King
Respondent
and
R.G.
Appellant
George M. Garvida, for the appellant
Neville Golwalla, for the respondent
Heard: February 6, 2026
On appeal from the conviction entered by Justice David P. Cole of the Ontario Court of Justice on July 8, 2022, and from the sentence imposed on November 18, 2022.
A. overview
[1] The appellant appeals his conviction for sexual assault with a weapon and seeks leave to appeal the two-year custodial sentence imposed upon him.
[2] The appellant and the complainant were married and lived together at the time of the offence underlying the conviction. The complainant accused the appellant of having sexually and physically assaulted her on several occasions, including once while threatening her with a knife. The appellant denied that the incident of sexual assault with a knife, as well as any of the other incidents, had occurred. Only the assault with the knife formed the subject of charges.
[3] The trial judge convicted the appellant of the charged offence: he found that, during an incident in July 2020, the appellant threatened the complainant with a knife and forced her to engage in sexual intercourse.
[4] A central issue at trial, renewed on appeal, concerned the reliability of the complainant’s memory. Approximately two months after the alleged sexual assault with a knife, the complainant was struck by a vehicle and sustained a traumatic brain injury. The defence maintained that the resulting memory difficulties undermined the reliability of her recollection of all the alleged assaults.
[5] The trial judge rejected that submission. He relied upon the complainant’s own evidence and upon factual observations from her son and sister in concluding that, notwithstanding some post-accident memory difficulties, her memory of events predating the accident remained substantially intact.
[6] The trial judge also relied upon evidence from Dr. Sharon Jankey, a psychologist at the rehabilitation facility where the complainant received treatment.
[7] Like the other witnesses, Dr. Jankey properly testified about what she personally observed during her dealings with the complainant, including whether she had observed apparent memory difficulties. During cross-examination, however, her evidence appeared to go further. After acknowledging that the complainant had been unable to identify the exact date of the last alleged assault, Dr. Jankey said that she did not think of this as indicating “a problem with her memory” and did not think it was “overly unusual” that the complainant could not remember the exact date.
[8] No party tendered or sought to rely upon Dr. Jankey's testimony as expert evidence. Nor did the trial judge invite submissions on whether any part of her evidence constituted admissible expert opinion. Nevertheless, in resolving the defence challenge to the complainant's memory, the trial judge gave Dr. Jankey's assessment particular weight because she was the “only mental health professional” who testified, was a “very experienced psychologist”, and was accustomed to dealing with accident victims.
[9] The appellant’s principal argument is that the trial judge erred in relying on Dr. Jankey’s evidence as expert opinion. I agree that the trial judge erred, although I would frame the error more narrowly than the appellant.
[10] The error does not arise merely because Dr. Jankey was a psychologist who expressed an opinion. A professional witness is not prevented from giving factual evidence or otherwise admissible lay opinion simply because of their occupation. Nor is every inference concerning memory necessarily a matter of expert opinion.
[11] The difficulty arose when Dr. Jankey moved beyond describing what she had observed and assessed the significance of the complainant’s inability to recall precise dates, expressing the view that it did not indicate a memory problem and was not overly unusual. No foundation had been laid establishing that Dr. Jankey possessed expertise in memory, cognition, neuropsychology, traumatic brain injury, or a related field that equipped her to provide an expert assessment on that issue.
[12] The trial judge then made the problem unmistakable. He expressly invoked Dr. Jankey’s professional status and experience as a psychologist accustomed to dealing with accident victims as a reason for giving her assessment additional evidentiary weight. The error, therefore, arose from the use the trial judge made of Dr. Jankey’s assessment: he treated it as carrying expert authority even though the expertise upon which that authority depended had never been established.
[13] I am nevertheless satisfied that the error caused no substantial wrong or miscarriage of justice. The trial judge’s conclusion concerning the complainant’s memory was independently supported by substantial admissible evidence, including Dr. Jankey’s factual observations. Her improperly weighted assessment served a confirmatory rather than foundational role. I would, therefore, apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.
[14] I would reject the appellant’s remaining grounds of appeal from conviction and dismiss the conviction appeal. I would also grant leave to appeal sentence but dismiss the sentence appeal.
B. background facts
1. The Charged Offence
[15] The appellant and the complainant met in the Philippines in 2004 and married in 2013. They have one son, born in 2006. In 2015, the complainant immigrated to Canada through employment sponsorship. She later sponsored the appellant and their son, who arrived in Canada in April 2019.
[16] After their arrival, the family lived in a two-bedroom apartment in Toronto with a roommate. The appellant, complainant, and their son shared one bedroom, where two twin beds had been pushed together.
[17] The complainant testified that, between April and July 2020, the appellant repeatedly forced her to engage in non-consensual sexual activity. The first several incidents she described were not the subject of charges.
[18] The charge before the court arose from an incident the complainant said occurred in the apartment kitchen early one morning in July 2020. She testified that, while she was preparing food, the appellant approached her with a knife, pointed it at her and demanded sex. According to her evidence, he then placed the knife in the sink and forced her to have sexual intercourse from behind. She testified that the incident ended when their son woke up.
[19] The appellant denied the allegations in their entirety.
2. The Complainant’s Memory
[20] In September 2020, the complainant was struck by a vehicle and suffered a traumatic brain injury. She remained hospitalized for several weeks before being transferred to West Park Health Care Centre for rehabilitation.
[21] The complainant acknowledged at trial that the accident had affected aspects of her memory, particularly her short-term memory and her ability to recall precise dates. The defence relied heavily upon those difficulties in challenging the reliability of her testimony concerning events that occurred before the accident.
[22] The complainant’s son testified about post-accident memory difficulties. Among other things, he recalled that she had forgotten the password to her cellphone and had difficulty accessing banking information. At the same time, he described circumstances demonstrating her continued ability to remember significant information.
[23] The complainant’s sister also testified. She described some difficulties following the accident, including word-finding problems, but said that the complainant’s long-term memory remained intact.
[24] The Crown also called Dr. Jankey, a psychologist working at West Park. Neither party sought to qualify her as an expert.
3. Dr. Jankey’s Evidence
[25] Dr. Jankey first met the complainant after she arrived at West Park for rehabilitation following the motor vehicle accident. She explained that she was asked to meet with the complainant, as she did with many patients who had been injured in accidents. Her purpose was to determine how the complainant was doing psychologically following the accident.
[26] The evidence is important because it identifies the purpose and scope of Dr. Jankey’s involvement. She was not presented at trial as having conducted a forensic or neuropsychological assessment of the complainant’s memory.
[27] Indeed, Dr. Jankey explained during cross-examination that her objective had been to determine whether there were significant psychological difficulties requiring attention. She said that she had not been probing for detailed information concerning the allegations because that was not the purpose of her involvement.
[28] Defence counsel then asked Dr. Jankey specifically about the complainant’s memory. The exchange is significant.
[29] Counsel first asked whether, on November 5, Dr. Jankey had “observe[d] any memory issues” from the complainant. After the trial judge clarified the question, Dr. Jankey answered that she had not had concerns about the complainant’s memory. She immediately qualified that answer, however, by explaining: “I wasn’t asking her for specific dates of, of details either.”
[30] That evidence was based upon Dr. Jankey’s personal observations. She was entitled to describe what she observed during her interactions with the complainant and to say that she had not observed apparent general memory problems.
[31] The evidence then appeared to move in a different direction.
[32] When asked about the complainant’s inability to identify the precise date of the last incident, Dr. Jankey testified:
But I don’t think I thought of in terms of okay, sure, her — there’s a problem with her memory, I was thinking more in terms of, you know, this is something that seemed to be a pattern and she couldn’t remember the last time that it occurred, that didn’t really sort of hit me in any way. I thought — I didn’t think that was overly unusual that she couldn’t remember the exact date of the last occurrence.
[33] That evidence lies at the centre of the ground of appeal alleging that the trial judge erred in relying on Dr. Jankey’s evidence as expert opinion.
4. The Reasons for Judgment
[34] In his reasons, the trial judge ultimately accepted the complainant’s evidence concerning the charged incident and rejected the appellant’s denial.
[35] He expressly recognized that the complainant had experienced memory lapses following the accident. Nevertheless, having considered the logic and presentation of her evidence, together with the evidence of her son and sister, he concluded that her memory of the pre-accident assaults was “substantially untouched”.
[36] He then stated:
In this I am particularly fortified by the evidence of Dr Jankey, the only mental health professional whose evidence I have heard in this trial. As I have previously indicated Dr. Jankey, a very experienced psychologist used to dealing with accident victims at West Park, was not troubled by the complainant’s occasional inability to recall dates, nor did she consider that the complainant’s memory was substantially at issue during her extensive dealings with her over several weeks.
[37] The significance of this passage lies not simply in the trial judge’s reliance on Dr. Jankey’s evidence, but in why he considered her assessment particularly persuasive. He expressly relied on her status as the “only mental health professional” who testified, her experience as a psychologist, and her work with accident victims.
[38] The appellant was convicted of sexual assault with a weapon contrary to s. 272(1)(a) of the Criminal Code. The related charge of possession of a weapon for a dangerous purpose was stayed. The appellant was sentenced to two years’ imprisonment followed by three years’ probation.
C. conviction appeal
1. Reliance on Dr. Jankey’s Opinion as Admissible Expert Evidence
[39] The appellant submits that the trial judge erred in his treatment of Dr. Jankey’s evidence concerning her assessment of the complainant’s memory. I agree, although I would frame the error more narrowly than the appellant. However, I would apply the curative proviso because the error could not have affected the verdict.
a. The Governing Principles
[40] The law of evidence distinguishes between observed fact and opinion and, within opinion evidence, between lay and expert opinion.
[41] Observed facts are matters personally perceived by a witness. An opinion involves an inference or conclusion drawn from facts. Where the validity or value of that inference depends upon specialized training, knowledge or experience, the evidence is expert opinion. If the inference does not, then it is lay opinion: R. v. Collins (2001), 2001 CanLII 24124 (ON CA), 160 C.C.C. (3d) 85 (Ont. C.A.), at paras. 16-17.
[42] These distinctions bear directly upon admissibility. Relevant factual evidence is generally admissible unless excluded by a rule of law or because its prejudicial effect exceeds its probative value. Opinion evidence, by contrast, is presumptively inadmissible: Collins, at paras. 16-21; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 14.
[43] Lay opinion may nevertheless be admitted where it is based upon the witness’s own observations, does not depend upon specialized knowledge, and is an inference that the witness is better placed than the trier of fact to draw. Lay witnesses routinely communicate impressions or conclusions that represent convenient ways of describing what they perceived and cannot be readily separated from those underlying observations: Collins, at para. 17; R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 835-39.
[44] Expert opinion is different. It draws its evidentiary force from knowledge or experience outside the ordinary experience of the trier of fact. A witness who proposes to give such evidence must possess appropriate expertise and satisfy the governing requirements for admissibility: White Burgess, at paras. 15, 23-24.
[45] Those safeguards serve an important purpose. Expert evidence carries a particular risk that the trier of fact may defer to the perceived authority of a witness possessing specialized knowledge. The authority associated with professional expertise may cause an opinion to assume greater evidentiary weight than the underlying evidence justifies: White Burgess, at paras. 17-18.
[46] Trial judges, therefore, perform an essential gatekeeping function. They are responsible for maintaining the evidentiary boundaries between fact, lay opinion, and expert opinion that protect the integrity of the trial process: R. v. Sutherland, 2022 MBCA 23, [2022] 5 W.W.R. 189, at para. 39, leave to appeal refused, [2022] S.C.C.A. No. 134; R. v. Sandhu, 2025 SKCA 76, 453 C.C.C. (3d) 110, at paras. 26-27.
[47] Gatekeeping begins with ruling on admissibility, permissible scope, and use. Vetting potential issues in advance of witness testimony is mandatory for expert evidence. It is also “good practice” where a witness with professional qualifications is called to provide factual testimony or lay opinion: R. v. Umeadi, 2023 ONCA 7, at para. 36, leave to appeal refused, [2023] S.C.C.A. No. 171; see also R. v. Moreira, 2023 ONCA 807, 432 C.C.C. (3d) 255, at para. 37.
[48] That gatekeeping responsibility continues throughout the testimony. A witness called to give factual evidence or lay opinion may, during examination-in-chief or cross-examination, move into an area requiring specialized knowledge. Where the evidence raises a material admissibility concern, particularly where the trier of fact may rely upon it as possessing specialized authority, the trial judge should address the issue with the parties and determine its permissible use. Depending on the circumstances, this may include inviting submissions and determining whether the evidence is admissible as factual evidence or lay opinion or instead requires expert qualification: Sutherland, at paras. 38-39, 47; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 61-66, leave to appeal refused, [2017] S.C.C.A. No. 343; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 11.
[49] At the same time, the boundary must be drawn carefully. The mere fact that a witness possesses professional qualifications does not mean that every inference expressed by that witness is expert opinion: Sutherland, at para. 40.
[50] A psychologist, physician, nurse, or police officer may testify to matters personally observed. Such a witness may also express an otherwise admissible lay opinion where the inference does not depend for its validity upon specialized professional knowledge: Sutherland, at para. 40; R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 20.
[51] The critical inquiry is, therefore, not simply who the witness is, but what inference the witness is drawing and what gives that inference its evidentiary force: Sutherland, at para. 40.
[52] That distinction has a corollary important to this appeal. If an opinion is truly lay opinion, a witness’s professional credentials cannot properly be used to give that opinion additional authority. Conversely, where the trier of fact relies upon specialized professional knowledge or experience as a reason for accepting an opinion, the trier of fact is treating the evidence as possessing expert authority: Graat, at pp. 840-41.
[53] In a judge-alone trial, the trial judge must, therefore, guard not only against relying upon inadmissible expert opinion, but also against subsequently giving otherwise admissible evidence expert weight because of professional qualifications that have not been established for that purpose: J.A.A., at para. 11; Graat, at pp. 840-41.
[54] The gatekeeping responsibility is not eliminated because counsel failed to object when the evidence was given. Evidence requiring expert qualification does not acquire expert status through silence, oversight, or consent: R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 73, n. 8, application for leave to appeal quashed, [2000] S.C.C.A. No. 16; R. v. P.J.C., 2025 ONCA 196, 176 O.R. (3d) 262, at para. 30.
b. Applying Those Principles to Dr. Jankey’s Evidence
[55] Applying those principles requires some precision. Not all of Dr. Jankey’s evidence concerning the complainant’s memory was objectionable.
[56] Dr. Jankey was entitled to describe her interactions with the complainant. She could testify that the complainant communicated with her, recalled particular information, failed to recall other information, and appeared during their dealings to function without obvious general memory difficulties.
[57] Her answer concerning November 5 illustrates the point. Defence counsel asked whether she had “observe[d] any memory issues”. Dr. Jankey said that she had not. She appropriately qualified that evidence by noting that she had not been asking the complainant for specific dates or details.
[58] That evidence was observational. The trial judge was entitled to consider it for that purpose.
[59] The evidence concerning the complainant’s inability to recall the precise date of the last alleged assault, upon which the trial judge relied as expert evidence, was materially different.
[60] Dr. Jankey first described the fact: the complainant could not provide an exact date.
[61] She then assessed the significance of that fact. She said that she did not think in terms of there being “a problem with her memory”, because the abuse appeared to represent a pattern, and that she did not think it was “overly unusual” for the complainant to be unable to recall the exact date.
[62] There is an important distinction between saying that the complainant could not remember the exact date and assessing what that inability signified about the functioning or reliability of her memory. The first describes what was observed. The second draws an inference from that fact.
[63] Dr. Jankey did both. She described the complainant’s inability to provide an exact date, but went further when she said that she did not regard it as indicating “a problem with her memory” and did not think it was “overly unusual”.
[64] Whether such an assessment constitutes lay or expert opinion depends upon the basis for the inference. If its validity depends upon specialized knowledge concerning memory, cognition or the effects of traumatic brain injury, it is expert opinion. If the inference is instead one that can be drawn from ordinary human experience, it may be admissible as lay opinion.
[65] I would not decide this appeal on the categorical proposition that Dr. Jankey’s assessment, considered in isolation, could only have constituted expert opinion. It is arguable that her observation that a person describing a recurring pattern of events may have difficulty assigning exact dates to particular occurrences may be accessible through ordinary human experience. Her occupation as a psychologist does not, without more, establish that assessment as expert opinion.
[66] If the trial judge proposed to rely on Dr. Jankey’s assessment in resolving the issue of the complainant’s memory, particularly by attributing significance to her professional qualifications or experience, his gatekeeping responsibility required him to raise the matter with the parties before doing so. He could have invited submissions and determined whether the assessment was admissible as lay opinion or required expert qualification, as well as its permissible use and scope.
[67] The difficulty arises from the use the trial judge ultimately made of the assessment in the absence of that gatekeeping. He did not treat it simply as an inference available through ordinary experience. As his reasons demonstrate, he considered Dr. Jankey’s assessment particularly persuasive because she was an experienced psychologist accustomed to dealing with accident victims. In doing so, he gave the assessment authority derived from professional expertise that had never been established.
c. No Foundation Was Laid for the Expertise Ultimately Attributed to Dr. Jankey
[68] Dr. Jankey was never qualified as an expert. There was no voir dire, and no inquiry defining the nature or limits of her expertise.
[69] More particularly, no evidentiary foundation was laid establishing expertise in memory, cognition, neuropsychology, traumatic brain injury, or the reliability of memory following such an injury.
[70] I emphasize that this is different from saying that Dr. Jankey did not possess such expertise. The record does not permit that conclusion.
[71] The point is that the record did not establish it. Witnesses cannot offer expert opinion if their expertise is never demonstrated: R. v. Nguyen, 2023 ONCA 531, 429 C.C.C. (3d) 192, at para. 49.
[72] That distinction is important. A professional title alone cannot establish the nature or scope of expertise relevant to a particular opinion. A psychologist may possess considerable expertise in one area and limited expertise in another. The qualification process exists in part to identify that boundary. That is one of the reasons why gatekeeping is essential.
[73] The transcript reinforces the concern.
[74] Dr. Jankey explained that she met the complainant as part of her work with patients undergoing rehabilitation after accidents. Her purpose was to determine how the complainant was doing psychologically following the accident.
[75] She later explained that her objective was to determine whether the complainant was experiencing significant psychological difficulties requiring attention. She had not been probing the complainant for detailed accounts of the alleged abuse because that was not her role.
[76] Nothing in that evidence establishes that Dr. Jankey had undertaken a clinical assessment of the complainant’s memory reliability or the cognitive effects of her traumatic brain injury.
[77] Again, the point is not that Dr. Jankey was incapable of performing such an assessment. It is that the evidence never established that she had done so or that she possessed the specialized expertise necessary to express an expert opinion on that subject.
[78] That evidentiary gap assumes particular significance because of the trial judge’s reasons.
d. The Trial Judge Gave the Evidence Expert Weight
[79] The trial judge first considered the complainant’s own evidence and the evidence of other witnesses concerning her memory.
[80] He then concluded that her memory of the events predating the accident was “substantially untouched”.
[81] He immediately added that he was “particularly fortified” in that conclusion by Dr. Jankey’s evidence.
[82] His explanation bears repeating:
In this I am particularly fortified by the evidence of Dr Jankey, the only mental health professional whose evidence I have heard in this trial. As I have previously indicated Dr. Jankey, a very experienced psychologist used to dealing with accident victims at West Park, was not troubled by the complainant’s occasional inability to recall dates, nor did she consider that the complainant’s memory was substantially at issue during her extensive dealings with her over several weeks.
[83] In my view, that passage identifies the legal error with considerable clarity.
[84] The trial judge did not merely rely upon Dr. Jankey because she had spent time with the complainant and personally observed her functioning.
[85] He expressly identified her as the “only mental health professional” whose evidence he had heard.
[86] He expressly emphasized that she was a “very experienced psychologist”.
[87] He expressly emphasized her experience “dealing with accident victims”.
[88] And he expressly stated that her evidence “particularly fortified” his conclusion concerning the complainant’s memory.
[89] Those professional attributes were, therefore, not incidental background information. The trial judge made them part of his explanation for the evidentiary weight he attributed to Dr. Jankey’s assessment.
[90] That is the critical distinction.
[91] If Dr. Jankey’s assessment that the complainant’s inability to recall dates was not unusual were merely a matter of ordinary human experience, her status as an experienced psychologist who dealt with accident victims added nothing to the validity of the inference.
[92] If, on the other hand, her experience as a psychologist dealing with accident victims made her assessment more reliable or authoritative — as the trial judge’s reasons indicate he considered it did — then he was relying upon specialized expertise.
[93] That expertise had never been established.
[94] The trial judge, therefore, did what the expert evidence rules do not permit: he attributed enhanced evidentiary weight to an opinion because of specialized professional expertise without first determining whether the witness possessed the relevant expertise, whether the opinion fell within its scope, and whether the requirements governing expert opinion evidence were satisfied.
[95] The error is particularly apparent when Dr. Jankey’s evidence is compared with the evidence of the complainant’s son and sister.
[96] The complainant’s son provided concrete examples of her functioning after the accident. The trial judge was entitled to consider those facts and draw his own conclusions from them.
[97] The complainant’s sister similarly described her personal observations of the complainant, including her impression that the complainant’s long-term memory remained intact.
[98] The Crown, therefore, has considerable force in submitting that witnesses who had extensive dealings with the complainant could properly describe what they observed about her post-accident memory.
[99] But that does not answer the difficulty with the trial judge’s treatment of Dr. Jankey’s evidence.
[100] Nothing in his reasons suggests that he gave the evidence of the complainant’s sister additional authority because she was a registered nurse. Nor did he attribute specialized expertise to the complainant’s son.
[101] He treated their evidence as evidence arising from their dealings with the complainant.
[102] Dr. Jankey’s evidence was treated differently.
[103] The trial judge singled her out as the “only mental health professional”, emphasized her experience as a psychologist dealing with accident victims, and relied upon those attributes in explaining why her assessment particularly fortified his conclusion.
[104] The distinction is, therefore, not simply between Dr. Jankey and the other witnesses. It is between observational evidence, which the trial judge could properly consider, and an evaluative assessment given enhanced authority because of untested professional expertise.
[105] The Crown’s submission that Dr. Jankey was simply another fact witness cannot account for the trial judge’s own explanation of why he found her evidence particularly persuasive.
e. The Error Should Be Framed Narrowly
[106] I would, therefore, frame the error narrowly.
[107] I would not hold that every statement Dr. Jankey made concerning the complainant’s memory was inadmissible.
[108] Her evidence about what she personally observed during her dealings with the complainant was properly available to the trial judge.
[109] Nor would I hold that a psychologist or other professional witness must be qualified as an expert before expressing any inference touching upon a subject related to his or her profession.
[110] The identity or occupation of a witness does not, without more, convert admissible lay opinion into expert opinion.
[111] The error arose because Dr. Jankey appeared to move beyond observation and to assess the significance of the complainant’s inability to recall exact dates, and the trial judge then treated the assessment as admissible expert evidence and relied expressly upon Dr. Jankey’s professional status and experience as a reason to give that assessment enhanced evidentiary authority.
[112] Put differently, the trial judge used Dr. Jankey’s untested professional assessment as expert confirmation of his own conclusion concerning the reliability of the complainant’s memory.
[113] I would not characterize this, as the appellant does, as a delegation of the ultimate credibility assessment to Dr. Jankey.
[114] The trial judge plainly conducted his own credibility and reliability assessment.
[115] The error was more precise: in conducting that assessment, he relied upon Dr. Jankey’s professional credentials and experience to enhance the weight of her opinion concerning the significance of the complainant’s memory difficulty, although she had never been qualified to provide an expert opinion on that subject.
[116] In this way, the very risk against which the expert evidence rules are intended to guard materialized: Dr. Jankey’s assessment acquired enhanced authority because of perceived professional expertise whose nature, relevance and scope had never been established.
[117] In these circumstances, the trial judge erred in law by relying upon Dr. Jankey’s untested professional expertise to give her assessment enhanced evidentiary weight. I would, therefore, allow this ground of appeal.
f. The Curative Proviso
[118] The existence of the error does not end the analysis. I would apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.
[119] The Crown properly raised the proviso in substance by submitting that Dr. Jankey’s opinion only formed a small part of a powerful Crown case. The defence also addressed it by asserting that the error was prejudicial: R. v. Ajise, 2018 ONCA 494, 428 D.L.R. (4th) 586, at para. 32, aff’d 2018 SCC 51, [2018] 3 S.C.R. 301; R. v. Cole, 2021 ONCA 759, 158 O.R. (3d) 680, at paras. 155-56, leave to appeal refused, [2021] S.C.C.A. No. 465.
[120] Under the proviso, an appellate court may dismiss an appeal notwithstanding an error of law where the error caused no substantial wrong or miscarriage of justice. The Crown bears the burden of establishing that the error could not have affected the verdict: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 23, 28-30.
[121] I am satisfied that threshold is met here.
[122] I reach that conclusion mindful of the significance of the issue to which the error related. The reliability of the complainant’s memory was an important issue at trial. The defence challenged her ability to recall the alleged assaults following a serious motor vehicle accident and traumatic brain injury. The trial judge’s erroneous reliance on Dr. Jankey’s professional expertise, therefore, concerned an issue that formed a significant part of the defence position.
[123] Nor would I minimize the trial judge’s statement that he was “particularly fortified” by Dr. Jankey’s evidence. Those words demonstrate that her evidence played a role in his reasoning. The question under the proviso, however, is whether the erroneous attribution of expert authority to her assessment could have affected the verdict: Khan, at para. 28.
[124] In my view, it could not.
[125] That conclusion follows from both the admissible evidence remaining after the error is removed and, importantly, the structure of the trial judge’s reasoning.
[126] First, the trial judge independently considered the complainant’s own evidence. He addressed both the substance of her testimony and the manner in which she gave it. He did not overlook the memory difficulties resulting from the accident. To the contrary, he expressly recognized that she had experienced identifiable memory lapses, including difficulty recalling dates and certain post-accident information.
[127] Nevertheless, having considered those difficulties in the context of her evidence as a whole, the trial judge concluded that her memory of the events predating the accident remained “substantially untouched”.
[128] Second, that conclusion was supported by evidence independent of Dr. Jankey’s professional assessment. The complainant’s son provided concrete examples of both her post-accident memory difficulties and her retained ability to remember significant information. The complainant’s sister similarly described her extensive dealings with the complainant and testified that her long-term memory remained intact.
[129] The trial judge was entitled to consider those observations and to draw his own conclusions from them. Neither the son’s evidence nor the sister’s evidence depended upon the attribution of unestablished professional expertise.
[130] Third, not all of Dr. Jankey’s evidence was affected by the error. As explained above, she was entitled to describe what she personally observed during her dealings with the complainant. She testified that she had not observed general memory difficulties and that, when asked specifically about November 5, she had no concerns about the complainant’s memory, while candidly acknowledging that she had not been asking for specific dates or details.
[131] That evidence was admissible as observational evidence. Its probative value did not depend upon Dr. Jankey possessing specialized expertise in memory, cognition or traumatic brain injury.
[132] The error that must be removed from the trial judge’s reasoning is, therefore, confined to Dr. Jankey’s assessment of the significance of the complainant’s inability to recall precise dates, together with the enhanced evidentiary weight the trial judge attributed to that assessment because of her professional status and experience.
[133] Once that assessment and its improper professional weighting are removed, a substantial body of admissible evidence remains supporting the trial judge’s conclusion concerning the complainant’s memory.
[134] The structure of the trial judge’s reasons is particularly important in assessing the effect of the error. He did not reason from Dr. Jankey’s assessment to the conclusion that the complainant’s memory was reliable. Nor did he treat her assessment as the evidentiary foundation for that conclusion.
[135] Rather, before invoking Dr. Jankey’s evidence, the trial judge had considered the complainant’s testimony, acknowledged her demonstrated memory difficulties, and considered the evidence of her son and sister. On that evidentiary foundation, he concluded that her memory of the events predating the accident remained “substantially untouched”.
[136] It was only after reaching that conclusion that the trial judge stated that he was “particularly fortified” by Dr. Jankey’s evidence. In context, her improperly weighted assessment served as additional confirmation of a conclusion already reached on the basis of independently admissible evidence. Courts have applied the proviso in that very scenario because the error-free findings provided a sufficient basis for the verdict: R. v. Boughner (2002), 2002 CanLII 44975 (ON CA), 159 O.A.C. 316 (C.A.), at paras. 26-31; R. v. S.H., 2020 SCC 3, [2020] 1 S.C.R. 12, at para. 1.
[137] This does not render the error unimportant. As I have explained, the trial judge gave Dr. Jankey’s assessment an authority it had not acquired through the safeguards governing expert opinion evidence. But the proviso requires an assessment of the effect of that error on the verdict, not merely its character.
[138] Having regard to the trial judge’s reasoning as a whole and to the substantial admissible evidence supporting his conclusion concerning the complainant’s memory, I am satisfied that the erroneous attribution of expert weight to this discrete aspect of Dr. Jankey’s evidence could not have affected the verdict.
[139] The error, therefore, caused no substantial wrong or miscarriage of justice. I would apply the curative proviso.
2. The W.(D.) Framework
[140] The appellant next submits that the trial judge misapplied R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, by treating the rejection of the defence evidence as affirmative proof of guilt.
[141] I do not accept that submission.
[142] The trial judge understood that the burden remained throughout upon the Crown to prove guilt beyond a reasonable doubt.
[143] He considered the appellant’s evidence and the evidence called by the defence. He rejected the appellant’s denial because he found aspects of it materially inconsistent and implausible.
[144] Importantly, he did not stop there.
[145] He proceeded to consider whether, on the whole of the evidence, the Crown had established the appellant’s guilt beyond a reasonable doubt.
[146] This was a case in which the charged sexual assault occurred in private. Independent corroboration was not legally required. A conviction could properly rest upon the evidence of a complainant whom the trial judge found credible and reliable: R. v. H.A.K., 2015 ONCA 905, 342 O.A.C. 79, at para. 11.
[147] The trial judge was aware of the absence of independent confirmation of the charged assault. He nevertheless found the complainant’s account compelling after considering the inconsistencies and the defence evidence.
[148] Nor did he improperly conflate credibility and reliability.
[149] He expressly confronted the complainant’s traumatic brain injury, her difficulty with dates, and other demonstrated memory lapses.
[150] Subject to the discrete error concerning Dr. Jankey’s evidence identified above, his conclusion that the complainant’s recollection of the pre-accident events remained substantially intact was available on the evidence.
[151] I am similarly unpersuaded that the trial judge improperly relied upon an absence of motive to fabricate. He recognized that the absence of a proven motive was not affirmative evidence of truthfulness and treated motive only as part of the surrounding circumstances: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 4.
[152] Read fairly and functionally, the reasons disclose no misapplication of W.(D.).
3. Alleged Misapprehensions and Adverse Inferences
[153] The appellant further submits that the trial judge materially misapprehended evidence concerning the appellant’s consumption of alcohol and the asserted involvement of an alleged acquaintance of the complainant, and that he drew improper adverse inferences from those matters.
[154] I would reject this ground.
[155] Appellate intervention based upon a misapprehension of evidence is warranted only where the error is material and played an essential part in the reasoning leading to conviction: R. v. B.B., 2025 ONCA 318, 509 D.L.R. (4th) 460, at para. 4, aff’d 2026 SCC 1, 509 D.L.R. (4th) 458.
[156] The matters identified by the appellant were collateral to the central issue at trial.
[157] The trial judge’s ultimate finding that the appellant threatened the complainant with a knife and sexually assaulted her in the kitchen did not depend upon a precise finding concerning the appellant’s degree of intoxication or upon the asserted involvement of the alleged acquaintance.
[158] The trial judge’s treatment of the evidence about the alleged acquaintance formed only one part of a broader credibility assessment. It does not demonstrate a reversal of the burden of proof or a material misapprehension going to the substance of the verdict.
[159] This ground of appeal, therefore, fails.
4. Crown Re-Examination
[160] The appellant submits that the trial judge improperly permitted and relied upon evidence elicited during Crown re-examination.
[161] I disagree.
[162] The permissible scope of re-examination is a matter committed to the trial judge’s discretion: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 148, leave to appeal refused, [2012] S.C.C.A. No. 8.
[163] Re-examination may properly clarify matters arising from cross-examination, subject always to the trial judge’s obligation to prevent unfairness: Candir, at para. 148.
[164] I see nothing in this record establishing that the Crown introduced prejudicial new matters in re-examination in a manner that rendered the trial unfair or contributed to a miscarriage of justice.
[165] The appellant has likewise identified no material prejudice resulting from the challenged questioning.
[166] I would dismiss this ground.
5. Adequacy of Reasons
[167] The appellant finally submits that the trial judge’s reasons were inadequate because they failed to demonstrate a proper analysis of reasonable doubt and did not sufficiently address inconsistencies in the evidence.
[168] I do not agree.
[169] Trial reasons must permit meaningful appellate review. They are not required to address every item of evidence or every submission, nor must they proceed through the evidence according to a particular formula: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24, 50; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30.
[170] The trial judge identified the central issues. He addressed the complainant’s traumatic brain injury and resulting memory concerns. He considered the evidence called by the defence and explained why he rejected the appellant’s denial. He addressed significant inconsistencies and explained why they did not cause him to doubt the complainant’s evidence concerning the charged incident.
[171] The reasons make the path to conviction intelligible.
[172] Read functionally and in the context of the record, they satisfy the standard articulated in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 71-76.
[173] The discrete evidentiary error involving Dr. Jankey does not render the reasons as a whole inadequate.
D. Sentence appeal
[174] The appellant seeks leave to appeal the sentence of two years’ imprisonment. He submits that the trial judge erred by failing to adequately consider the availability of a conditional sentence and by failing to give sufficient weight to the immigration consequences arising from a sentence of two years.
[175] I would grant leave but dismiss the appeal.
[176] Although a conditional sentence was legally available at the time of sentencing, the fact of statutory availability did not make such a sentence fit.
[177] The offence involved penetrative sexual violence committed against an intimate partner and facilitated by the use of a knife.
[178] The trial judge properly characterized the offence as a grave breach of trust and a serious act of sexual violence.
[179] Those findings are amply supported by the evidence.
[180] A conditional sentence of two years less a day would not adequately have reflected the gravity of the offence, the appellant’s moral blameworthiness, or the governing objectives of denunciation and deterrence.
[181] As this court observed in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77, the general range for penetrative sexual assault is three to five years.
[182] The two-year custodial sentence imposed in this case was, therefore, if anything, lenient.
[183] I would also reject the appellant’s argument concerning immigration consequences.
[184] Immigration consequences are relevant collateral consequences and may properly be taken into account in determining a fit sentence: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 13-14.
[185] But collateral consequences cannot justify a sentence that is unfit or disproportionate to the gravity of the offence and the offender’s degree of responsibility.
[186] Given the seriousness of this offence, the domestic context, the penetrative sexual assault, and the use of a weapon, the immigration consequences do not justify reducing the sentence below two years.
[187] The appellant has demonstrated neither an error in principle nor a sentence that is demonstrably unfit.
E. disposition
[188] For these reasons, I would dismiss the conviction appeal.
[189] The trial judge was entitled to rely upon Dr. Jankey’s factual observations concerning the complainant’s memory. He erred, however, by giving her assessment of the significance of the complainant’s inability to recall precise dates enhanced evidentiary weight because of professional expertise whose nature, relevance and scope had never been established.
[190] Nevertheless, once that assessment and its improper professional weighting are removed from the trial judge’s reasoning, substantial admissible evidence remains supporting his conclusion concerning the complainant’s memory. Dr. Jankey’s improperly weighted assessment served as additional confirmation of a conclusion already reached on an independently admissible evidentiary foundation. I am, therefore, satisfied that the error caused no substantial wrong or miscarriage of justice and would apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.
[191] I would grant leave to appeal sentence but dismiss the sentence appeal.
Released: August 19, 2026 “M.T.”
“M. Tulloch C.J.O.”
“I agree. Roberts J.A.”
“I agree. M. Rahman 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.