COURT OF APPEAL FOR ONTARIO
CITATION: R. v. S.W., 2026 ONCA 594[1]
DATE: 20260824
DOCKET: COA-25-CR-1144
Zarnett, Favreau and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
S.W.
Appellant
Peter Copeland, for the appellant
Emily Bala, for the respondent
Heard: June 2, 2026
On appeal from the convictions entered by Justice Annette Casullo of the Superior Court of Justice, on February 10, 2025, with reasons reported at 2025 ONSC 1224.
[1] The appellant was convicted of two counts of sexual assault and two counts of sexual interference arising from incidents in relation to T-J.J. and B.J., who were the niece and nephew of his partner, C.W. The incidents with T-J.J. took place between 2016 and 2019 when she was between 11 and 13 years of age. The incidents with B.J. took place in 2019 when he was ten. When T-J.J. and B.J. testified at trial, they were 18 and 14, respectively.
[2] The appellant appeals his convictions. For the reasons set out below, I would dismiss the appeal.
I. The incidents and the disclosure
[3] The incidents at issue occurred during family gatherings, at the complainants’ home, the appellant and C.W.’s home, and the complainants’ grandparents’ home. I provide a brief summary of the complainants’ evidence regarding these incidents:
(a) The ‘Camo Pant Incident’: When T-J.J. was between 11-13 years old, she slept at the appellant and C.W.’s house. In the morning, while C.W. was in the shower, the appellant took out his penis in the living room, lay behind T-J.J. on the couch, caressed her, and rubbed his penis against her clothed body. T-J.J. remembered that the appellant was wearing fleece camouflage pyjama pants that had a button fly.
(b) The ‘Starlight Incident’: The appellant and C.W. hosted an extended family gathering at their house for Easter, during which they gave T- J.J. a starlight projector. They may have also given B.J. a projector. The appellant took T-J.J. into a bedroom to show her how it worked. While T-J.J. was looking at the projector, the appellant took his clothes off and when she looked over, he was naked. T-J.J. recalled the appellant saying either “don’t tell your mom” or “don’t tell anyone.” T- J.J. went to leave, and the appellant moved towards her saying “no, no, no”. She left the room.
(c) The ‘Grandparent Incident’: This incident took place when B.J. was ten years old, during a family gathering at the complainants’ grandparents’ home, while B.J. and the appellant were playing in the basement. At the preliminary inquiry, T-J.J. testified that she saw the appellant put his hand down B.J.’s pants. At trial she said she could no longer remember seeing the appellant’s hand down B.J.’s pants. B.J. testified that a similar incident took place the same day as the Halloween Incident (referred to below), but it was not clear whether he had conflated the two events or whether they were two distinct incidents. He said that while he was playing with the appellant, the appellant picked him up, laid him down on the mattress, and put his hand on B.J.’s penis. B.J. pushed his hand away. B.J. remembered that T-J.J. walked by just as the appellant was touching him.
(d) The ‘Halloween Incident’: This incident took place on October 26, 2019, also when B.J. was ten years old. C.W. and the appellant visited the complainants’ house, and B.J. and the appellant played video games in B.J.’s room that night. T-J.J. testified that she went to check on them as she was worried that something might happen to B.J. When she made eye contact with the appellant, he began touching B.J. on the outside of his pants while looking directly at her. B.J. testified similarly that while he and the appellant were playing video games in his room, the appellant repeatedly put his hand on B.J.’s thigh and B.J. pushed it away. The appellant then put his hand directly on B.J.’s penis, and B.J. shoved the appellant’s hand away saying words to the effect of “enough, that’s disgusting.” B.J. remembered that T-J.J. was walking by the room when the appellant was touching him. Later, B.J. went to get in the shower and the appellant asked if he could join, offering to pay him $30. B.J. refused.
[4] On the evening of the Halloween Incident, T-J.J. asked B.J. if the appellant had touched him. He said yes. The children then told their mother that the appellant had sexually assaulted them. At trial, T-J.J. and B.J.’s mother agreed that this conversation took place but said that they only told her that the appellant had touched B.J.’s leg. She said she agreed to keep the children away from the appellant.
[5] At some point, the mother shared the allegations with her mother (T-J.J. and B.J.’s maternal grandmother), as well as with C.W. She did not tell the children’s father or report the incidents to the police.
[6] The complainants twice told their maternal grandmother that “something had happened” with the appellant, including that the appellant had asked B.J. to shower with him. Several months later, their maternal grandmother recorded an eight-second audio clip of B.J. in which he stated that nothing had happened. B.J. initially testified that he did not remember this but subsequently testified that his grandmother had forced him to say that nothing happened and that he had not known she was recording him.
[7] In 2021, B.J. started seeing C.W. again. At this time, T-J.J. was living with her father and was not in touch with B.J. or her mother. When T-J.J. found out that B.J. had contact with C.W. again, she disclosed the assaults to their father. They reported the assaults to the police, at which time both T-J.J. and B.J. gave videotaped statements to the police describing the above incidents.
II. The trial and decision below
[8] The trial took place over nine days. The Crown called T-J.J. and B.J., as well as their mother. T-J.J. and B.J. adopted their police statements as part of their testimony. The appellant testified, and the defence called C.W. and the maternal grandmother. The appellant denied each of the incidents. The defence theory was that T-J.J. was upset that her brother was spending more time with C.W. than she was, that she fabricated her allegations, and that she convinced her brother to do the same.
[9] In a detailed decision in which she extensively recounted the evidence and parties’ positions and arguments, the trial judge:
(a) considered inconsistencies between T-J.J.’s police statement and her testimony at the preliminary inquiry and at trial, but found her evidence overall to be “direct, powerful, compelling and clear”, concluding that the Camo Pant Incident and Starlight Incident took place;
(b) recognized issues with B.J.’s memory, noting that he was an “extremely poor historian”, but found that his evidence on the core allegations never shifted. Though she was not convinced beyond a reasonable doubt that an incident similar to the Grandparent Incident had occurred the same day as the Halloween Incident, she concluded that the appellant touched B.J.’s penis while they played video games in B.J.’s bedroom on October 26, 2019 (the Halloween Incident) and that the appellant offered B.J. money to get in the shower with him;
(c) largely accepted the evidence of T-J.J.’s and B.J.’s mother. Where the mother’s evidence differed from that of her children, she accepted T-J.J.’s and B.J.’s evidence over their mother’s;
(d) accepted some but not all of C.W.’s evidence, concluding that “there was nothing in the testimony of C.W. that [she did] accept which allowed for an inference that the incidents related by T-J.J. and B.J. could not have happened”;
(e) rejected the evidence of the maternal grandmother, whom she found was not credible;
(f) determined that, in the context of all of the evidence at trial, his evidence failed to leave her with a reasonable doubt; and
(g) found the appellant guilty of all four counts on the indictment.
III. Issues on appeal:
[10] The appellant makes four submissions on appeal:
(a) The trial judge erred in permitting T-J.J. to testify pursuant to a promise to tell the truth rather than under oath or affirmation;
(b) The trial judge erred in her assessment of C.W.’s evidence;
(c) The trial judge misapprehended evidence in relation to the camouflage pyjama pants; and
(d) The trial judge failed to address material inconsistencies in T-J.J.’s evidence.
[11] The appellant seeks a new trial.
a. Testimony under a promise to tell the truth
[12] T-J.J. was 18 years old at trial. The appellant submits that the trial judge erred in permitting T-J.J. to testify under a promise to tell the truth rather than under oath or affirmation. The respondent agrees that this was an error, and the issue on appeal is the appropriate remedy.
[13] The issue appears to have arisen by inadvertence. Prior to T-J.J.’s testimony, when she was not in the courtroom, the Registrar asked whether the witness required an oath, affirmation, or a promise to tell the truth. The Crown responded, “[p]robably a promise.” When T-J.J. took the stand, she was asked whether she promised to tell “the truth, the whole truth, and nothing but the truth.” She responded “[y]es.” The defence did not object. The following morning, she was reminded of her promise to tell the truth and she said “[y]es.” Again, there was no objection.
[14] Where there is no challenge to mental capacity, the evidence of a person age 14 or over is to be taken by oath or solemn affirmation: Criminal Code, R.S.C. 1985, c. C-46, ss. 540, 646; Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 13-16.
[15] The appellant submits that it was simply not a lawful option for T-J.J. to testify under a promise to tell the truth and that on this basis the appeal should be allowed. He further submits that the curative proviso should not apply as the error was not harmless: T-J.J. was a central Crown witness, and she ought to have been given the choice between an oath or affirmation, a process which, he submits, reaffirms the solemnity of the commitment to truthful testimony.
[16] In support of his position, the appellant cites a summary conviction appeal decision, R. v. Shaw, 2016 ONSC 658, in which the trial was found to be “improper” where two adult witnesses, both without disabilities, had given evidence under a promise to tell the truth rather than under oath or affirmation. He also relies on R. v. K.C., 2021 ONCA 776, a decision in which this court declined to apply the curative proviso where the most critical witnesses in a youth sexual assault trial gave evidence without having been sworn or affirmed in accordance with the statutory requirements.
[17] I do not accept the appellant’s submission. While there was unquestionably an error in having T-J.J. testify under a promise to tell the truth, on the facts of this case, the error was harmless and the curative proviso should apply, specifically s. 686(1)(b)(iii).
[18] This case is distinguishable from K.C. In that case, this court was not satisfied that the error was benign. The procedure followed appeared casual. For example, the appellant was asked if he wanted to “take an oath on the Bible or would… prefer a promise.” He said: “Yeah, promise.” Answers such as “yeah” and “okay” undermined the required solemnity, and this court determined that the circumstances did not “act as a ‘functional equivalent’ of an oath or affirmation”.
[19] By contrast, here, there is simply no evidence that T-J.J.’s promise was anything less than a functional equivalent of an oath or affirmation. T-J.J. was formally asked whether she promised to tell the truth, the whole truth, and nothing but the truth. She formally responded “yes.” There was no objection when the promise was initially administered or when she was reminded the following day of her promise. In addition, the trial judge made findings of fact that she “clearly wanted to tell the truth” and that she “has not been careless with the truth.” In my view, these findings highlight that there was no concern as to whether T-J.J. understood the need to tell the truth, and she was found to have made every effort to do so.
[20] I would not endorse following the lower court decisions in Shaw and R. v. Jardine, 2016 ONSC 7686, at paras. 13-17. Instead, I would adopt the approach of the Court of Appeal for British Columbia set out in R. v. Hanna (1993), 1993 CanLII 1425 (BC CA), 80 C.C.C. (3d) 289 (B.C.C.A.). Where an irregular commitment was administered (a combination of a solemn affirmation and a promise to tell the truth), the court concluded as follows, at p. 300:
There is no reason to think that the actual form of words administered in any way diminished the binding effect which they were intended to have upon the witness’s conscience, nor is there any reason to believe that the witness himself felt any less morally obligated to tell the truth than he would have if the proper form of solemn affirmation had been administered to him. In those circumstances, no possible prejudice could have resulted to the appellant.
[21] The parties agreed that if this court were of the view that the curative proviso should apply, the applicable provision would be s. 686(1)(b)(iii), on the basis that “no substantial wrong or miscarriage of justice” has occurred: R. v. Tayo Tompouba, 2024 SCC 16, 435 C.C.C. (3d) 285, at para. 76. I accept that submission. The failure to administer the proper commitment to testify truthfully is, in my view, an error that can be addressed under s. 686(1)(b)(iii), as it is procedural in nature and not jurisdictional: see e.g., R. v. Krack (1990), 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.), at p. 559; Tayo Tompouba, at paras. 75-76. I also accept the Crown’s submission that a proper approach requires examining, on the facts of each case, whether the Crown could meet the burden of establishing that the error caused no prejudice. Certainly, T-J.J.’s promise to tell the truth was an error from which no prejudice flowed, and it cannot be said that it had any impact on the result of the trial.
b. No reviewable error in the assessment of C.W.’s evidence
[22] The appellant submits that the trial judge erred in her treatment of the evidence of C.W., T-J.J.’s and B.J.’s aunt. First, he says that the trial judge erred in requiring that C.W.’s evidence support an inference that the incidents “could not have happened”, rather than assessing whether, in combination with other evidence, it raised a reasonable doubt about whether the incidents did in fact take place. Second, he says that the trial judge’s reasoning path was silent as to the evidence that she neither accepted nor rejected. Third, he asserts that the trial judge failed to identify what part of C.W.’s evidence she did or did not accept. Finally, he argues that the trial judge placed a burden on the appellant to disprove a fact when she stated “I do not accept that the receipts prove beyond a reasonable doubt” when the projectors were purchased.
[23] The extensive reasons of the trial judge must be read as a whole, in light of the record and the live issues at trial. The Supreme Court has repeatedly emphasized that it is not the role of an appellate court to finely parse reasons in search of error. Rather, the task of this court is much narrower: to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69.
[24] The reasons of the trial judge demonstrate that she had a clear understanding of the relationship between reasonable doubt and credibility assessments and how they applied to the case: R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51. She instructed herself on the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and on the need to consider the evidence as a whole. There is no question that she understood that the burden was on the Crown throughout the trial. The trial judge considered C.W.’s testimony in the context of the arguments at trial and the record before her. She was not obliged to address every piece of evidence. Her reasons explain what she decided and why.
[25] At trial, the defence submitted that the Camo Pant and Starlight incidents “could not have happened” as T-J.J. and B.J. alleged. The defence submitted that C.W.’s testimony placed the Camo Pant Incident before the Starlight Incident. It pointed to what were asserted to be the receipt for the purchase of two projectors, dated November 2016, and a receipt for the return of one projector, dated December 2016. Both receipts predated the date range on the indictment, which started January 1, 2017.
[26] The trial judge’s statement that C.W.’s evidence did not support an inference that the incidents could not have occurred was directly responsive to the submission about timing and not a reversal of the burden of proof. The trial judge rejected the defence theory, finding that T-J.J. was “far from certain” regarding which event happened first. Further, she held that if she was wrong on this issue, she was satisfied that the date of the charges in relation to T-J.J. were not an essential element of the offence.
[27] Further, while the trial judge’s phrasing regarding “reasonable doubt” in respect of the receipts for the projectors is unfortunate, I accept the respondent’s submission that this comment merely served to highlight that nothing on the face of the receipts could show that they related to the purchase of the projectors. Her comment must be read in the context of the reasons as a whole.
c. No misapprehension regarding the camouflage pyjama pants
[28] The appellant submits that the trial judge misapprehended the evidence in relation to the camouflage pyjama pants that he was wearing during the Camo Pant Incident. He says the misapprehensions relate to the testimony about the fabric (twill, fleece, flannel, or soft cotton); how many pairs he said he had; T-J.J.’s testimony about whether the pants did or did not look like fleece; and testimony about whether the pants had a fly. The appellant submits that the misapprehensions were material and related to an essential part of the trial judge’s reasoning process, in particular to how the trial judge assessed the credibility of both the appellant and T-J.J.
[29] I do not accept this submission. None of the alleged errors impacted the trial judge’s reasoning process or were material to the outcome.
[30] While the trial judge incorrectly stated that the appellant was inconsistent about how many pairs of camouflage pants he had and what they were made of, she expressly described these inconsistencies as “minor” and stated that on its own, the appellant’s testimony was “plausible and believable”. Her misstatements were peripheral and not central to her reasoning process: R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at paras. 53-55. So too were her minor misstatements about T-J.J.’s testimony about the camouflage pants. Nothing turned on whether T-J.J. thought the pants looked like fleece, or, as the trial judge stated, looked like pants one would wear out. Similarly, whether the pants did or did not have a button fly or flap was in no way determinative.
d. No failure to address material inconsistencies in T-J.J.’s testimony
[31] Finally, the appellant submits that the trial judge failed to address or resolve multiple material inconsistencies in T-J.J.’s testimony. Specifically, he says she failed to resolve what he called “association evidence”, that is, evidence about whether T-J.J. avoided the appellant due to extreme discomfort; the appellant’s state of dress (or undress) during the Starlight Incident; whether the appellant touched B.J. over or under B.J.’s pants during the Grandparent Incident; and inconsistencies between T-J.J. and B.J.’s accounts of the incidents to their mother.
[32] I do not accept these submissions, which in my view, amount to a parsing of the reasons, an argument about their insufficiency, and a challenge to the weight given by the trial judge to certain evidence.
[33] A functional and contextual reading of the trial judge’s reasons has repeatedly been emphasized by the Supreme Court: G.F., at para. 69. The trial judge is not held to an abstract level of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R 869, at para. 55. The trial judge considered the evidence as a whole. She was not obliged to refer to each and every potential inconsistency or reconcile each contradiction. She assessed credibility and reliability thoroughly, making clear findings.
[34] Having said that, I briefly address the arguments as follows:
(a) First, the trial judge specifically addressed the defence submission of a contradiction between T-J.J.’s statement that she was extremely uncomfortable with the appellant and photos showing her appearing to be enjoying herself in his presence. She found that T-J.J. “laid waste” to counsel’s proposition. T-J.J. stated: “Just because I had a smile does not mean I was happy and okay.” The trial judge was entitled to accept that explanation.
(b) Second, with respect to the difference in T-J.J.’s testimony at the preliminary inquiry and at trial about whether the appellant was fully naked during the Starlight Incident or his shirt was on and his pants were at his ankles, the trial judge specifically noted that T-J.J. was challenged on this, and accepted T-J.J.’s statement that she was remembering things differently at trial. Similarly, the trial judge was alive to the difference in testimony about whether the appellant’s hand was overtop or underneath B.J.’s pants during the Halloween Incident, and ultimately accepted T-J.J.’s statement that “I know what happened to me and B.J.”
(c) The trial judge emphasized that T-J.J. acknowledged differences between her police statement, the preliminary inquiry, and trial, and provided age-appropriate rationales for the difference in her evidence. She found T-J.J.’s memory overall to be rich and detailed, noting her sensory perceptions and vivid details of her surroundings. She noted T-J.J.’s visible distress when she could not remember whether the appellant’s hands were in or on B.J.’s pants. She concluded: “There are inconsistencies in T-J.J.’s evidence, but I find those are reasonably explained.” She clearly accepted the core reliability of T-J.J.’s accounts. There is no basis upon which to interfere with her conclusions.
(d) Finally, there is no basis to interfere with the trial judge’s assessment of the complainants’ and their mother’s testimony about the initial sexual abuse disclosure. She accepted T-J.J.’s account. She was entitled to prefer T-J.J.’s recollection over B.J.’s given her finding that he was an “extremely poor historian”. She found the mother tried to shine a positive light on herself and that this “erode[d] her credibility”.
IV. Disposition
[35] I would dismiss the appeal.
Released: August 24, 2026 “B.Z.”
“L. Madsen J.A.”
“I agree. B. Zarnett J.A.”
“I agree. L. Favreau 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.