Court of Appeal for Ontario

Date: 2025-03-31
Docket: C69272
Coram: Grant Huscroft, P.J. Monahan, S. Gomery

Between:
His Majesty the King (Respondent)
and
D.R. (Appellant)

Appearances:
Aidan Seymour-Butler and Anthony Moustacalis, for the appellant
Amy Rose, for the respondent

Heard: March 26, 2025

On appeal from the conviction entered on September 17, 2020 and the sentence imposed on March 11, 2021 by Justice Jill C. Cameron of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant appeals from his convictions for sexual assault, assault with a weapon, and assault on the complainant, as well as uttering threats against the complainant’s father. In addition, he asks this court to reduce his lifetime order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) to a 20-year term.

[2] The appellant argues that the trial judge:

1. engaged in impermissible propensity reasoning;
2. failed to exercise caution when using surreptitious recordings; and
3. erred in finding the complainant reliable given repeated memory lapses.

[3] We did not call on the Crown to respond to these arguments. The appeal from conviction is dismissed for the reasons that follow. Leave to appeal sentence is granted but the sentence appeal is dismissed, without prejudice to the appellant’s right to apply to the Superior Court to vary the length of the SOIRA order.

Conviction Appeal

The trial judge did not engage in impermissible propensity reasoning

[4] The appellant argues that the trial judge relied on character evidence led by the Crown and engaged in propensity reasoning in finding the appellant guilty of the sexual assault counts. Specifically, the appellant takes issue with evidence led by the Crown suggesting he was obsessed with the complainant. The appellant argues that the Crown suggested the appellant was the type of person who takes what he wants and was therefore the type to commit a sexual assault.

[5] We do not agree. The audio recordings discussed by the trial judge were relevant in confirming the complainant’s evidence as to the nature of her relationship with the appellant and in establishing her credibility. The audio recordings and the text messages were evidence of the appellant’s treatment of the complainant. They explained why the complainant stayed in the relationship with the appellant and delayed in reporting the events. This evidence was properly before the court and the trial judge did not rely on a forbidden chain of reasoning to infer the appellant’s guilt from general disposition or propensity.

The trial judge did not err in using surreptitious recordings

[6] The appellant acknowledges that the surreptitious recordings of the appellant were not illegal but argues that the trial judge failed to exercise the caution required in addressing them. He submits that this resulted in a skewed credibility assessment, illogical reasoning, and, ultimately, an unreasonable verdict.

[7] There is no merit in this argument. The trial judge found that the complainant was credible and reliable, whereas she found that the appellant was not. She rejected his evidence as incredible, defying both logic and common sense. This was the trial judge’s call to make and there is no basis to interfere with it on appeal. There is no support for the appellant’s assertion that the verdict was illogical, irrational and unreasonable on that account, and the trial judge’s use of the term “corroborative” rather than “confirmatory” is of no moment.

The trial judge did not err in finding the complainant reliable

[8] The appellant submits that it was unreasonable for the trial judge to accept the complainant’s evidence as reliable given that she did not remember aspects of her evidence and had to be assisted by reviewing transcripts from the preliminary hearing.

[9] There is no merit to this argument. It is essentially an invitation to the court to remake the trial judge’s reliability findings. That is not our role on appeal. The trial judge acknowledged memory shortcomings in the complainant’s evidence but found that these concerned relatively minor matters and did not undermine her credibility. She made no error in doing so, much less a palpable and overriding error that warrants intervention on appeal. The trial judge’s reliability findings are entitled to deference in this court.

Sentence Appeal

[10] The appellant has served the carceral portion of his sentence. He challenges the lifetime SOIRA order that was imposed automatically in accordance with Criminal Code provisions (ss. 490.012 and 490.013(2.1)) then in effect. Those provisions were subsequently declared to be unconstitutional and so of no force or effect, although the declaration in respect of s. 490.012 was suspended for a one-year period: R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, at para. 143. The appellant seeks to have the lifetime order reduced to 20 years and filed a notice of constitutional question seeking a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms.

[11] Subsection 490.05(1) of the Criminal Code permits an application to vary the term of a lifetime order made pursuant to s. 490.012. Subsection (4) requires an applicant to establish that the offences committed do not demonstrate or form part of “a pattern of behaviour showing that the person presents an increased risk or reoffending by committing a crime of a sexual nature”.

[12] The Crown accepts that this court has jurisdiction to make the requested order but argues that the matter should be remitted to the trial judge for proceedings pursuant to s. 490.05(4). We agree. The evidentiary record that would permit the court to substitute a 20-year term for the lifetime SOIRA order is simply not present. We do not agree with the appellant that the reasons for sentencing are adequate for this purpose. Those reasons were written for purpose of determining the appropriate sentence rather than assessing future risk, a question to which a number of additional considerations may be relevant, including expert evidence.

[13] Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed, without prejudice to the appellant’s right to apply to the Superior Court to vary the length of the SOIRA order.

“Grant Huscroft J.A.”
“P.J. Monahan J.A.”
“S. Gomery J.A.”

Publication Ban

[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.

Note on Gender Identity

[2] Note that the appellant identified as a woman at the time of trial and was referred to by the trial judge using female pronouns. According to the appellant’s factum, the appellant now identifies as a man with the pronouns he/him.