Court of Appeal for Ontario

CITATION: R. v. B.D., 2025 ONCA 116[^1]

DATE: 20250218

DOCKET: COA-24-CR-0314

Huscroft, Trotter and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

B.D.

Appellant

Counsel: James Coulter, for the appellant Raoof Zamanifar, for the respondent

Heard: February 14, 2025

On appeal from the conviction entered by Justice Robert Wadden of the Ontario Court of Justice on June 21, 2023.

REASONS FOR DECISION

[1] The appellant was convicted of assault causing bodily harm, two counts of assault, three counts of uttering threats to cause death, and two counts of sexual assault, all of the offences committed against his wife. He argues that the trial judge erred:

1. by engaging in propensity reasoning;
2. by misapprehending the evidence in concluding that unconscious collusion was not in issue; and
3. by applying uneven scrutiny to the appellant’s evidence.

[2] We dismissed the appeal without calling on the Crown. These are the reasons for our decision.

The trial judge did not rely on propensity reasoning

[3] The Crown introduced a digital audio recording into evidence, without objection from the appellant, which the complainant testified was made of an assault alleged to have occurred in August 2020. There is no question that the recording captured the appellant threatening the complainant. However, the trial judge found that the recording might not have been made during the August 2020 assault. Nevertheless, the trial judge found that the recording had “significant evidentiary value” because it indicated that the appellant was willing to threaten violence and undermined his evidence that he was a peacemaking victim of the complainant’s violence. The recording was also consistent with the evidence of the complainant and her son that the appellant stated he had a right to have sex with the complainant.

[4] The appellant argues that the trial judge wrongly used the recording to engage in propensity reasoning, finding that the appellant was the type of person to make threats and engage in non-consensual sexual touching.

[5] We do not agree.

[6] The appellant accepts that the audio recording was properly admitted and did not become inadmissible when the trial judge found that it might have been a recording of another incident. Further, he properly concedes that it was relevant to assessing the appellant’s credibility. The trial judge was entitled to use the recording to impeach the appellant’s credibility – and in particular his testimony that the complainant was the violent one and that he was a “peacemaker” – as well as to support the testimony of the complainant’s son. But the recording was not central to the reasons supporting the findings of guilt. The complainant’s evidence was supported by the photos of her injuries as well as the evidence of the children.

The trial judge did not misapprehend the evidence by concluding that unconscious collusion was not in issue

[7] The appellant argues that there was an air of reality that there had been unconscious collusion and the trial judge erred in failing to consider all of the circumstances in assessing the credibility of the complainant and the children, both of whom testified against the appellant.

[8] We do not agree.

[9] The trial judge found that although the complainant discussed the incident with her children there was no evidence of intentional collusion – no evidence that she had coached them on how to testify. Although the trial judge stated “we are not really talking about unconscious effects of collusion”, he did not overlook the possibility of unconscious collusion. The trial judge considered and rejected that possibility, finding that the complainant’s son’s “very specific testimony” was not influenced by unconscious collusion and that the complainant’s daughter’s evidence was influenced only on a peripheral matter that did not affect her credibility. These findings were open to the trial judge and there is no basis for this court to interfere with them.

The trial judge did not apply uneven scrutiny to the appellant’s evidence

[10] The appellant argues that the trial judge failed to address inconsistencies in the complainant’s evidence or excused them as immaterial or irrelevant, while rejecting his evidence on comparatively trivial matters.

[11] This argument must be rejected. It is in essence an invitation to remake the trial judge’s credibility findings. Those findings are entitled to deference and we see no basis to interfere with them.

Conclusion

[12] The conviction appeal is dismissed. The appellant filed a notice of abandonment of the sentence appeal he had initially brought. Accordingly, the sentence appeal is dismissed as abandoned.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“J. Copeland J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.