Court of Appeal for Ontario

Date: 2025-05-20
Docket: COA-23-CR-0003
Coram: Tulloch C.J.O., Roberts and Monahan JJ.A.

Between:
His Majesty the King, Respondent
and
S.M., Appellant

Appearances:
Myles Anevich, for the appellant
Amy Rose, for the respondent

Heard: 2025-05-07

On appeal from the conviction entered on February 8, 2022, by Justice Shannon L. Pollock of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his conviction for sexual assault following a judge-alone trial. He alleges that the trial judge erred in (1) misapprehending the material aspects of the evidence, and (2) providing insufficient reasons in her analysis of the complainant’s credibility and motive to fabricate.

[2] For the reasons below, the appeal is dismissed.

Background

[3] The complainant, S.D., and the appellant, S.M., had known each other for a couple of weeks. On June 5, 2019, they made plans for the complainant to go over to the appellant’s home to watch a movie. They did not confirm a time. Later that evening, as she got ready to leave, the complainant informed her live-in boyfriend that she would be going to the appellant’s home. At 12:51 a.m., (now June 6, 2019), after her boyfriend was asleep, the complainant took a cab to go to the appellant’s home.

[4] After the complainant arrived at the appellant’s home, they went to the basement living area and sat on the couch to watch the movie. The appellant offered her an alcoholic drink and she accepted. Shortly after starting the movie, the two paused it and went outside for a cigarette. While outside, the complainant informed the appellant that she was very tired and wanted to take a “power nap.” At trial, she testified that she did not want to be rude by leaving so soon after arriving at the appellant’s home and reasoned that if she took a power nap, they could continue watching the movie and spending time together, as planned. The two returned to the basement.

[5] The appellant and complainant diverged on what happened next.

[6] The complainant testified that she got into the bed fully dressed, wearing the jeans, “swoop-neck” shirt and windbreaker she arrived in. After the appellant brought her socks to warm up her feet, she quickly started to drift to sleep facing the wall. She felt the appellant get into bed. He proceeded to grope her breasts over her clothes and tried kissing her neck. She told him, “No, I’m tired” several times. She testified that the appellant then turned her over, took her windbreaker jacket off, and got on top of her. She said he responded to her objection in an aggressive tone, telling her, “You are not tired”. The complainant testified that the appellant proceeded to insert his finger in her vagina, aggressively remove her pants and underwear, lick her vagina, and penetrate her vagina with his penis, all without her consent. The complainant testified that she tried moving her body to try to stop the appellant multiple times but ultimately gave up fighting back.

[7] When the sexual activity ended, the appellant left the basement, and the complainant ran to the bathroom to call her boyfriend. When she could not reach him, she messaged a friend, who called the police. During this time, she remained locked inside the bathroom out of fear of the appellant. The complainant heard the appellant and another family member she presumed to be his mother knock on the door of the bathroom. She did not open the door and was experiencing a panic attack while continuing to message the friend who was in contact with the police. When the police arrived, they found the complainant in the basement bathroom, wearing a towel around her lower body and visibly shaken with tears in her eyes.

[8] The appellant’s testimony was that all sexual contact that occurred was with the complainant’s consent. He testified that they cuddled and kissed on the couch when she arrived. He prepared the complainant a mixed alcoholic drink “but no one was intoxicated”. He said that once they returned from their smoke break outside, the complainant removed her jacket herself, got into bed and waved him over invitingly. He testified that when he got into bed, they began kissing some more and got undressed. He took off his pants and the complainant took off her pants and underwear herself. The appellant’s testimony was that he proceeded to give the complainant oral sex, which led to sexual intercourse in multiple positions with the complainant engaging as an active participant. He stated that after they finished, the complainant said she was hungry, and he went upstairs to make her some food. He then brought the food down and knocked on the bathroom door to let her know the food was outside but did not get a response. He did not think anything was wrong, but noted the complainant was in the bathroom for “quite a while.”

[9] When the police arrived at his home, he initially thought they were searching for someone else and thought the police were at the wrong address. He did not have an explanation for why, when the police asked him where the complainant was, he told them she had left, even though he knew she was still there. The police nevertheless entered the home and found the complainant in the basement bathroom shaking and crying, at which point the appellant was arrested and charged. The appellant testified that he believed the complainant had fabricated the allegations in a guilt-induced panic, because she was in a relationship with someone else at the time and regretted having been unfaithful.

Decision Below

[10] At trial, the only issue was whether there was consent. In oral reasons, the trial judge found that the appellant’s evidence was inconsistent internally and did not align with the statement he gave to police shortly after he was arrested. On some points, she found that it was difficult to even know what his evidence was because his answers changed throughout his own testimony. She rejected the submission that his inconsistencies and difficulties with memory were only on minor points. In fact, the trial judge found that the appellant was inconsistent on key elements such as his consumption of drugs and alcohol that night, the discussion leading up to the alleged sexual intercourse, the description of the sexual intercourse, and the discussion about the food after the incident. She found he could not reliably recount what happened that night, given the inconsistencies, the nature of the inconsistencies, and his lack of memory. She rejected his evidence and was not left in reasonable doubt by it.

[11] The trial judge found that the complainant was “a strong witness”. She gave a version of events that was credible and reliable. She gave a detailed version of what happened and when unable to provide a specific detail about the physical contact between them, would explain why that was the case. The trial judge agreed with the Crown’s submission that there “[was] nothing about the complainant’s evidence that call[ed] into question her credibility or reliability.” As a result, the trial judge accepted the complainant’s evidence and found the appellant guilty of sexual assault.

Issues

[12] The appellant advances two grounds of appeal:

1. The trial judge misapprehended material aspects of the evidence; and
2. The reasons were legally insufficient, particularly in failing to address alleged inconsistencies in the complainant’s evidence and the appellant’s theory of a motive to fabricate.

Analysis

[13] Respectfully, neither ground is made out. This appeal, at its core, invites this court to reweigh the evidence and substitute its own view of the complainant’s credibility and the appellant’s reliability—factual determinations that are well outside the proper scope of appellate review absent legal error or palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, paras. 22-25; R. v. Kruk, 2024 SCC 7, para. 3; R. v. Gagnon, 2006 SCC 17, para. 20. We see no such error in the trial judge’s reasons.

[14] Moreover, the Supreme Court of Canada has consistently emphasized that appellate courts are to take a “functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient.” As a result, “[appellate courts] must 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” (citations omitted). See R. v. G.F., 2021 SCC 20, paras. 69, 81. In this case, looking at the reasons as a whole and the evidence before the trial judge, we are satisfied that the reasons were sufficient to “aptly demonstrate the rationale behind her conclusions on credibility and reasonable doubt.” See Gagnon, at para. 18.

A. The trial judge did not misapprehend the evidence

[15] The appellant does not allege that the trial judge was mistaken as to the substance of the evidence but argues that she erred in failing to consider and give effect to several inconsistencies in the complainant’s evidence. The appellant identifies several purported inconsistencies in the complainant’s evidence—namely, with respect to her timeline on the night in question, her resistance to the assault, the removal and placement of her clothing, her reason for attending the appellant’s house, and an alleged motive to fabricate. He submits that the trial judge failed to grapple with these inconsistencies which should have left her with a reasonable doubt about the complainant’s evidence and the appellant’s guilt at step three of the W.(D.) analysis.

[16] We do not accept that characterization. First, “[t]he assessment of the significance of any alleged inconsistency must be made in the context of the evidence and issues in the particular trial.” See R. v. Polemidiotis, 2024 ONCA 905, para. 37. In other words, the weight given to any inconsistency and its resulting impact on a witness’ credibility and/or reliability, is fact-specific, and “absent legal error”, is owed deference on appeal. See Polemidiotis, at para. 37; R. v. Saleh, 2022 ONCA 735, para. 22.

[17] Second, a misapprehension of evidence amounts to a reversible error only where the judge is mistaken on the substance of material (as opposed to peripheral) evidence, and those errors play an essential part in the reasoning process resulting in a conviction. See R. v. Lohrer, 2004 SCC 80, para. 2; R. v. B.B., 2025 ONCA 318, para. 4.

[18] In this case, the trial judge neither misapprehended the complainant’s evidence, nor did any of the alleged inconsistencies highlighted by the appellant go to the heart of the reasoning process. The trial judge expressly found the complainant to be a credible and reliable witness. Her evidence was clear on the central issue at trial: that she did not consent to the sexual activity. Where her memory was limited on minor details, she explained why. The trial judge was not required to address every minor or peripheral inconsistency, nor respond to every argument advanced by defense counsel, particularly where she found that the complainant’s core account was compelling and internally consistent. See R. v. A.M., 2014 ONCA 769, paras. 13-14; R. v. R.E.M., 2008 SCC 51, para. 64.

[19] For example, the complainant consistently denied that she misled her boyfriend about her plans or waited for him to fall asleep before leaving for the appellant’s house. The record shows no contradiction on this point, and it was not an argument vigorously pursued in defense questioning or closing statements. Similarly, her explanation for how she resisted the sexual assault—initially omitting some details, then clarifying them in subsequent testimony—was measured, candid, and ultimately consistent with her original police statement.

[20] The complainant’s recollection regarding the removal of her pants and underwear, while not perfectly aligned with police photographs, was not materially contradictory. She did not claim to know how her clothing ended up where police found it after the assault. The trial judge was entitled to treat the placement of the pants and underwear as a peripheral detail as it did not confirm nor disprove either witness’ version of events.

[21] Finally, there was no inconsistency between the complainant’s evidence and the photographs of the food that the appellant testified he brought downstairs while the complainant was in the bathroom. The complainant said that she had not seen the food before going into the bathroom, which aligned with the appellant’s evidence.

[22] The findings made by the trial judge were open to her on the record. The appellant has failed to raise any errors in substance that played an essential part of the reasoning process leading to conviction. See Lohrer, at para. 8. We would therefore reject this ground of appeal.

B. The trial judge’s reasons were sufficiently amenable to appellate review

[23] The appellant further contends that the trial judge failed to address what he describes as the “critical” defence theory: that the complainant fabricated the allegation out of guilt for having cheated on her boyfriend. He characterizes this as both an insufficiency of reasons issue and an improper application of step three of the W.(D.) analysis.

[24] This submission is unpersuasive. Defence counsel scarcely advanced the motive to fabricate theory in closing argument and the record does not support the assertion that it was a material issue at trial. The trial judge was not required to deal explicitly with an undeveloped theory, especially one unsupported by any independent evidence. To make the finding absent a factual record would be to rely on the unfounded and stereotypical assumption that a woman in a relationship would not go over to a man’s home at night unless she intended to have sex. As the Supreme Court has made clear, speculative motives grounded in myths and stereotypes are not legitimate bases to impugn the credibility of a sexual assault complainant. See Kruk, at para. 24. Viewed in context of the record and the live issues at trial, the trial judge was not obliged to resolve this argument in her reasons.

[25] We nevertheless acknowledge that the trial judge’s analysis of the complainant’s credibility was not ideal. While she elaborated clear and cogent explanations for rejecting the appellant’s evidence and justified her credibility and reliability findings in this regard, her direct findings on the complainant’s credibility were limited to a few lines. That said, while it would have been preferable for the trial judge to further elaborate her credibility findings regarding the complainant, the reasons read in context demonstrate that she was aware of and “grappled with the critical issues, including contradictory evidence” between the witnesses. See Polemidiotis, at para. 30, citing R.E.M., at paras. 55-57. Between the two “starkly different versions of events”, the trial judge would have known that “the credibility and reliability of the complainant’s and appellant’s accounts [were] fundamental to the resolution of the issues at trial.” See R. v. A.J.K., 2022 ONCA 487, para. 28. It is evident that the trial judge had assessed the complainant’s credibility as part of the totality of the evidence. This court cannot intervene simply because we would have preferred the trial court to provide a more fulsome explanation for her acceptance of the complainant’s evidence. See G.F., at para. 76; R. v. Sheppard, 2002 SCC 26, para. 26; R. v. Griffin, 2023 ONCA 559, paras. 37-38.

[26] Thus, the trial judge’s reasons, read contextually and with the record, demonstrate a reasonable basis for why she accepted the complainant’s evidence and rejected the appellant’s version of events. See Gagnon, at para. 23. It was accepted that the sexual contact had occurred, and the only issue at trial was consent. The complainant’s evidence was clear and unwavering on the issue of non-consent. The appellant’s evidence, by contrast, was rife with inconsistencies—particularly regarding his alcohol and marijuana use, the conversation about condom use, and his statement to police upon their arrival. The trial judge provided ample explanation for finding his account unreliable and accepting the complainant’s evidence.

[27] Finally, we find no error in the trial judge’s application of the W.(D.) principles. The trial judge specifically referred to W.(D.), and even noted after the complainant’s credibility assessment that “[t]his case is about whether [she] believe[d] the accused and, even if [she did] not believe him, whether his evidence [left] [her] in doubt.” Consequently, she made two distinct credibility findings: 1) she rejected the appellant’s evidence on the basis that it was inconsistent and conflicted with other evidence adduced at trial, and 2) she accepted the complainant’s evidence due to its consistency and strength. See R. v. K.M., 2025 ONCA 228, para. 6. She therefore concluded that she was “not left in doubt by the evidence” of the appellant and that the Crown had proven its case beyond a reasonable doubt.

[28] The factual findings and credibility assessment of the appellant are enough to understand the trial judge’s basis for conviction. We therefore reject this ground of appeal.

Conclusion

[29] The appellant has not demonstrated any misapprehension of the evidence going to the substance of the conviction, nor has he shown that the trial judge’s reasons were legally or factually insufficient. Her conclusions were reasonably open to her on the record and appellate intervention is not warranted.

[30] The appellant sought leave to appeal sentence in his notice of appeal but made no submissions in writing or at the hearing of the appeal on sentence.

[31] Accordingly, the appeal is dismissed.

“M. Tulloch C.J.O.”
“L.B. Roberts J.A.”
“P.J. Monahan J.A.”

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