Court of Appeal for Ontario

Date: 2025-04-11
Docket: COA-23-CR-0308

Coram: B.W. Miller, B. Zarnett, L. Madsen

Between:
His Majesty the King (Respondent)
and
J.S. (Appellant)

Appearances:
Jolene Hansell, for the appellant
Akshay Aurora, for the respondent

Heard: 2025-04-07

On appeal from the conviction entered on January 26, 2023, and the sentence imposed on March 30, 2023, by Justice Paddy A. Hardman of the Ontario Court of Justice.

Reasons for Decision

[1] At the conclusion of argument we dismissed the appeal with reasons to follow. These are our reasons.

[2] The appellant, who was 27 at the time of the offences, was found guilty of two counts of child luring, one count of sexual interference, and one count of sexual assault. Convictions were entered for one count of child luring and sexual interference, while the other two counts were stayed under the Kienapple principle. The appellant was sentenced to three years incarceration on the conviction for sexual interference, and one year concurrent on the child luring conviction.

[3] The complainant was 14 years old at the time of the offences. Her mother had been in a romantic relationship of some duration with the appellant’s father.

[4] The complainant’s mother discovered that the appellant had been communicating with the complainant via Snapchat and Facebook, expressing sexual desire and requesting topless photos. When the mother saw the exchange, she notified the police and provided images of the communications. The complainant later met with the police and disclosed two occasions where she claimed the appellant had touched her sexually without her consent.

[5] The first, and more invasive, incident involved the appellant being in the complainant’s house while their respective parents were out together. The appellant tried to kiss the complainant forcefully before throwing her on a couch, removing her pants and underwear, and touching her vagina. The complainant testified that the appellant only stopped when he heard his father’s car pull up in the driveway. A second incident involved the appellant squeezing or rubbing the inside of the complainant’s upper thigh, near her vagina, while seated next to her in a car.

[6] The appellant advanced two arguments at the hearing of his appeal against conviction. The first ground is that the trial judge erred in the assessment of the complainant’s evidence by excusing imprecision and inconsistencies on the basis that the complainant was testifying as a child when, in fact, the complainant was 17 at the time of trial.

[7] We do not agree that the trial judge made this error. Her repeated references to the complainant being a youthful witness do not suggest that she applied the more relaxed standard to evaluating evidence that would be appropriate to a child witness. The trial judge was fully aware that the complainant was not a young child but nevertheless a youthful witness – 17 years old at trial – and that she was testifying about traumatic experiences that happened to her when she was 14. The trial judge occasionally remarked that the complainant’s youth and the traumatic context of the events accounted for some of her testimonial imprecision, and lack of recollection of details. The trial judge did not thereby make the error of applying the testimonial standard applicable to children. Moreover, the trial judge’s predominant reason for her absence of concern with the credibility of the complainant’s evidence was that the various inconsistencies and absences of detail – whether the car was white or silver, whether the appellant squeezed her thigh or rubbed it, the best characterization of how he touched her vagina – were on matters that the trial judge found to be peripheral to the offences.

[8] With respect to the second ground of appeal, the appellant argues that the trial judge erred by reversing the burden of proof by requiring the appellant to positively identify a person who could have hacked the appellant’s social media accounts and sent to the complainant the messages that were the subject of the child luring conviction.

[9] Again, we see no merit in this argument. The reasons for judgment, read as a whole, demonstrate that the trial judge understood the Crown’s onus, and that she was satisfied that the evidence did not give rise to a reasonable doubt on this count. The trial judge was impressed that the communications could only have been made by someone who had been privy to recent interactions between the two, such as having gone for ice cream. The trial judge’s comment that the appellant had advanced no plausible theory about who the hacker could have been was unfortunate and, when read in isolation, suggestive that the trial judge had required the appellant to supply such a theory. But when the reasons are read as a whole, it is abundantly clear that the trial judge was convinced beyond a reasonable doubt of the appellant’s guilt on the basis of the totality of the evidence before her and did not place an onus on the appellant to identify a third party hacker.

[10] With respect to the sentence appeal, the appellant argues that the trial judge made multiple errors and that a 2-year, conditional sentence ought to be imposed.

[11] We disagree. The appellant’s primary argument is that the trial judge made an error in principle by stating that in cases of child sexual abuse, the focus is on the consequences of the conduct to the exclusion of considering the personal circumstances of the offender.

[12] The trial judge did not make this error. She rightly prioritized denunciation and deterrence but did not do so to the exclusion of considering the appellant’s circumstances. She noted the appellant’s relative youth, difficult upbringing, pro‑social work history, and his role as a spouse and father to five children. Although this ground is framed as an error in principle, what the appellant is really arguing is that the trial judge failed to weigh these factors appropriately. An appellate court may not intervene to vary a sentence absent an error in principle that affected the sentence or a finding that the sentence is demonstrably unfit: R. v. M.(C.A.), para 90; R. v. Perry, 2025 ONCA 241, para 12. Reweighing is not a function of this court: R. v. Lacasse, 2015 SCC 64, para 78.

[13] With respect to the argument that the trial judge did not have the benefit of this court’s decision in R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at the time of sentencing, particularly with respect to the importance of family considerations in sentencing, and that this decision mandates a resentencing, we note that Habib did not constitute a break with prior case law: R. v. Brown, 2025 ONCA 164, para 10. Furthermore, the trial judge had the advantage of a pre-sentence report and her reasons demonstrate that she was fully alive to the appellant’s family dynamics.

[14] With respect to the argument that the appellant ought to have received Downes credit for harsh bail conditions that required him to live separate from his family for 19 months, we note that defence counsel at trial did not request this, and the trial judge was aware of the pre-trial bail conditions when imposing a global sentence.

[15] Finally, a conditional sentence was not a realistic prospect given the gravity of the offences and the trial judge made no error in imposing a custodial sentence.

Disposition

[16] The conviction appeal is dismissed. Leave to appeal sentence is granted, and the sentence appeal is dismissed.

“B.W. Miller J.A.”
“B. Zarnett J.A.”
“L. Madsen 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.