Court of Appeal for Ontario

Date: 2025-07-11
Docket: C70450 and C70675
Coram: S. Gomery, J. Dawe, L. Madsen

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

Appearances:

• Bryan Badali, for the appellant on the conviction appeal (C70675)
• R.V.A., appearing in person on the sentence appeal (C70450)
• Philippe G. Cowle, for the respondent

Heard: 2025-06-05

On appeal from the convictions entered on August 5, 2021 and the sentence imposed on March 8, 2022 by Justice Andrea Tuck-Jackson of the Ontario Court of Justice.

Reasons for Decision

Introduction

After a trial in the Ontario Court of Justice, the appellant was found guilty of repeatedly sexually abusing his daughter when she was between 12 and 16 years old. He was convicted of two counts of sexual interference and one count of sexual assault, for which he received concurrent sentences of 9 years’ imprisonment.

The appellant appeals against both his convictions and his sentence. His appeals were bifurcated, with his conviction appeal proceeding as a solicitor’s appeal (C70675) and his sentence appeal proceeding as an inmate appeal (C70450). However, both appeals were heard together, and the appellant’s counsel on the conviction appeal, Mr. Badali, assisted the court by also making submissions for the appellant on the sentence appeal.

For the following reasons, we dismiss the conviction appeal. While we grant leave to appeal sentence, we also dismiss the sentence appeal.

A. Factual Background

When the complainant was six years old, she came to Canada to live with the appellant and her stepmother. On her evidence, when she was around 12 years old the appellant began sexually abusing her, usually when her stepmother was away from the family’s apartment. Sometimes he would subject her to sexual intercourse, and on other occasions he would touch her genitals. The frequency of the sexual abuse diminished when the complainant turned 15 years old, because by this time her half-brother was older and there was less privacy in the apartment. It stopped altogether when the complainant was 16 years old.

On April 30, 2019, when the complainant was 19 years old, she and the appellant got into an argument in the family apartment. Part of their exchange was overheard by the complainant’s cousin, who was on the phone with the complainant at the time. As discussed below, there was conflicting evidence about what was said during this argument. After this argument the complainant moved out of the apartment. The next day she went to the police and reported the allegations that gave rise to the sexual interference and sexual assault charges against the appellant, and about which she testified at trial.

The appellant testified and denied the complainant’s allegations. The complainant’s stepmother also testified for the defence. The defence theory at trial was that the complainant had fabricated her allegations to obtain subsidized housing.

B. The Conviction Appeal

(1) The Trial Judge’s Reliance on the Appellant’s Alleged Adoptive Admission

The appellant’s first ground of appeal is that the trial judge erred by finding that the appellant made an adoptive admission of guilt during the part of the April 30, 2019 argument overheard by the complainant’s cousin.

The cousin testified that she had phoned the complainant, who said she would call back but did not end the call, allowing the cousin to hear the ensuing conversation in the background. According to the cousin, the complainant told the appellant: “You know what you did to me.” The appellant replied:

Okay, go. Go to the shelter and tell them what I did to you. It’s not like they’ll believe you anyways ’cause all you do is lie.

The complainant responded: “How am I lying about the fact that you raped me?”, to which the appellant replied: “So g’wan, gwan and tell them”.

The appellant denied that the complainant accused him of sexual abuse during this argument, or any time previously. He testified that when he told the complainant to go to the shelter and tell them what he had done to her, he was referring to a physical altercation they had had a few minutes earlier, during which the complainant had threatened him with a knife, and he had taken the knife away and then slapped the complainant.

The trial judge treated the exchange as reported by the cousin as an adoptive admission by the appellant. She explained:

In my respectful view, [the appellant’s] failure to question or contradict his daughter’s assertion amounts, in law, to an adoptive admission by silence. Separate and apart from the fact that [the cousin’s] confirmatory evidence bolsters [the complainant’s] overall credibility, [the appellant’s] adoptive admission by silence also serves as confirmatory evidence of [the complainant’s] claims of sexual abuse at the hands of her father.

In a footnote, the trial judge added that even if she had “concluded that [the appellant] did not, in law, make an adoptive admission by silence, this would have had no impact on [her] finding of guilt in this case.”

The appellant does not dispute that the trial judge was entitled to accept the cousin’s evidence about the words she overheard. However, he argues that the trial judge erred by treating the appellant’s failure to dispute or deny the complainant’s allegations as an adoptive admission. He contends that the evidence was not properly admissible to be used for this purpose, and in the alternative argues that the trial judge erred by giving the evidence any weight.

In R. v. Robinson, 2014 ONCA 63, para 48, this court endorsed Watt J.A.’s extrajudicial explanation of the adoptive admission rule in Watt's Manual of Criminal Evidence (Toronto: Carswell, 2013), at para. 36.04:

Assent may also be inferred from [the accused’s] silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.

The court also adopted Watt J.A.’s further observation that:

Consistent with basic principle, where an issue arises, the trial judge should first determine whether there is any evidence of assent or adoption by [the accused], before permitting the evidence to be adduced before the jury. Where there is evidence on which the jury could find adoption, the factual determination should be left to them with appropriate instruction.

The court in Robinson also endorsed Griffiths J.A.’s explanation of the respective roles of the trial judge and the jury in R. v. Warner, pp. 144-45:

Whether or not the silence of the accused constitutes an implied admission depends upon whether, in all of the circumstances, such an expectation is reasonable. The trial judge should determine in advance whether there is sufficient evidence from which a jury might reasonably find that the conduct amounted to an acknowledgement of responsibility.

Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made.

Mr. Badali acknowledges that the evidence about what was said during the April 30, 2019 argument was admissible as part of the complainant’s narrative about the circumstances that led to her police complaint the next day. However, he argues that the trial judge erred by implicitly ruling that this evidence also met the test for admissibility under the adoptive admissions rule.

Crown and defence counsel at trial raised this issue for the first time in their closing submissions. However, defence counsel (not Mr. Badali) did not argue that the evidence failed to meet the threshold requirements for admissibility. Rather, she urged the trial judge not to treat the appellant’s response to the complainant’s utterances as an admission that her allegations were true, having regard to his explanation at trial for his comments and his denials of the complainant’s allegations.

At the admissibility stage, the trial judge had to decide whether there was “sufficient evidence” from which she could conclude, as the trier of fact, that it would have been reasonable to expect the appellant to have expressly denied the complainant’s allegations if they were false. This is not a high threshold, and we are satisfied that it was met here, particularly in view of the position taken by defence counsel at trial. A properly instructed trier of fact that accepted the cousin’s evidence about the words that were spoken could reasonably conclude that the appellant’s failure to deny the complainant’s accusation – “How am I lying about the fact that you raped me?” – amounted to an acknowledgement of responsibility.

Mr. Badali correctly notes that triers of fact “must approach adoption by silence with great care”, because of “the potential for inaccuracy in jury suppositions about how a person ‘should’ respond in particular circumstances”: Robinson, paras. 58, 89. He argues that the circumstances here called for special caution because the cousin did not overhear the entire argument.

The trial judge’s decision about the weight she gave to the cousin’s evidence was a factual determination that is entitled to substantial appellate deference. We are not persuaded that her reasons disclose any errors in principle, or that she made any palpable and overriding errors with respect to the substance of the evidence that would permit us to interfere with her findings of fact. After citing Robinson, the trial judge concluded:

[H]aving regard to the combative nature of his relationship with his daughter, together with the serious nature of what she had said, it is reasonable to expect that [the appellant] would have expressed surprise over, or challenged, her assertion had he felt it was untrue.

The trial judge’s determination that it was reasonable to expect the appellant to have responded differently if he was disputing the truth of the complainant’s allegation was a fact-driven conclusion she was entitled to reach.

The appellant argues that the trial judge should have explained how she reconciled this conclusion with the complainant’s evidence that she had confronted the appellant about her allegations of sexual abuse on multiple previous occasions. He contends that this evidence was significant, because if he already knew about the complainant’s allegations before the April 30, 2019 confrontation, this would affect how he should reasonably be expected to have responded to her allegations on this occasion.

The complainant testified that she had previously confronted the appellant about the sexual abuse, he either said nothing or apologized. The appellant’s evidence was that the complainant had never previously alleged that he had sexually abused her, and that she also did not make these allegations during the April 30, 2019 confrontation. The trial judge expressly rejected the appellant’s evidence about what was said during the April 30, 2019 confrontation. She otherwise generally accepted the complainant’s evidence as reliable, and found as a fact that in June 2017 the complainant had told her former boyfriend that her father had sexually abused her. This was admissible to rebut the defence’s allegation that the complainant had concocted her allegations to bolster her application for supported housing in 2019.

Although the trial judge did not expressly resolve the conflict between the complainant and the appellant over whether the complainant had ever confronted the appellant with her sexual abuse allegations before April 30, 2019, we do not agree that it was necessary for her to do so before she could treat the appellant’s response on this occasion as an adoptive admission. Even if the appellant already knew before April 30, 2019 that the complainant was accusing him of sexual abuse, it was still open to the trial judge to conclude that he would have responded differently to her direct challenge – “How am I lying about the fact that you raped me?” – if he was disputing the truth of her allegations.

We are not persuaded that the trial judge’s reasons disclose any palpable and overriding error that would allow us to interfere with this factual finding, nor are we persuaded that her reasons are deficient. Trial judges are not obliged to give reasons that “set out every finding or conclusion in the process of arriving at the verdict”, nor must they explain their findings “on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned”: R. v. R.E.M., 2008 SCC 51, paras 18, 20; see also R. v. Wadforth, 2009 ONCA 716, paras 64-69.

Although the cousin did not hear the entire argument between the complainant and the appellant on April 30, 2019, this did not make her evidence about what she did hear inadmissible: see e.g. R. v. Schneider, 2022 SCC 34, paras 63-84. The trial judge was also entitled to decide that the portion of the conversation the cousin overheard provided “sufficient context” to enable the trial judge, in her capacity as the trier of fact, “to give the overheard words meaning”: R. v. Merritt, 2023 ONCA 3, para 73, leave to appeal refused, [2023] S.C.C.A. No. 48.

We are accordingly not persuaded that the trial judge made any reversible errors, either in admitting the evidence about the appellant’s response to the complainant’s accusations on April 30, 2019 as an adoptive admission, or in deciding how much weight to give this evidence. This makes it unnecessary for us to consider the significance of the trial judge’s footnote stating that she would have found the appellant guilty in any event.

(2) The Stepmother’s Evidence

The appellant’s second ground of appeal is that the trial judge, after finding the complainant’s stepmother to be a “largely reliable and credible” witness, did not expressly explain why the stepmother’s evidence did not raise a reasonable doubt about the complainant’s credibility and reliability.

The complainant’s evidence was that the appellant subjected her to sexual intercourse many times over a roughly five-year period, including on many occasions where she could no longer remember the specific details. She testified that the final incident where she had a clear memory happened when she was 15 years old and her stepmother had gone out shopping, leaving her young half-brother at home playing with another young boy whom her stepmother had been babysitting. The stepmother recalled babysitting this child but denied having ever left him in the appellant’s care.

The appellant, citing this court’s decision in R. v. J.E., 2024 ONCA 801, paras 15, 24, argues that even though the conflict between the complainant and the stepmother’s evidence was over a peripheral detail, it still had potential implications for the trial judge’s assessment of the complainant’s credibility.

In our view, the appellant’s reliance on J.E. is misplaced. The trial judge in J.E. made legal errors that led him to disregard evidence that supported the defence, including by incorrectly finding that he could only consider this evidence if he accepted it beyond a reasonable doubt. By contrast, in this case there is nothing in the trial judge’s reasons that suggests that she misapplied the burden of proof, or that she made any other legal errors that led her to improperly discount the stepmother’s evidence.

The appellant’s argument essentially comes down to a complaint that the trial judge did not expressly explain how she reconciled her acceptance of the complainant’s allegations with her finding that the stepmother’s evidence was “largely credible and reliable”.

As already mentioned, trial judges are not obliged to set out every finding on each piece of evidence, so far as their path of reasoning can be discerned. The conflict between the stepmother’s evidence and the complainant’s testimony was over a relatively minor peripheral detail: namely, whether, during one of the many times when the complainant said her father subjected her to sexual intercourse, there had been another small child in the apartment as well as her younger brother. The trial judge gave lengthy reasons explaining why she accepted the core of the complainant’s evidence, despite finding that the complainant had been mistaken or inconsistent about certain other details. She also explained at length why she rejected the appellant’s testimony and, as discussed above, why she interpreted the cousin’s evidence of his April 30, 2019 exchange with the complainant as an adoptive admission of guilt.

In this context, we are satisfied that the trial judge’s reasons were adequate. Even if the trial judge had explicitly accepted the stepmother’s evidence over the complainant’s evidence on this narrow disputed point, there is no realistic prospect this finding would have shaken her overall confidence in the truth of the complainant’s allegations, having regard to her reasons as a whole. Her reasons adequately informed the appellant of the basis for the verdicts and allow for meaningful appellate review of her reasoning process.

(3) Rejection of the Appellant’s Evidence

The appellant’s third ground of appeal is that the trial judge rejected his exculpatory testimony based on “improper, unfair and erroneous considerations”. He takes particular issue with the trial judge criticizing him for having accused two Crown witnesses of deliberately lying rather than merely being mistaken.

Trial judges’ assessments of the testimonial credibility of witnesses are reviewable “using the nuanced and holistic standard of palpable and overriding error”: R. v. Kruk, 2024 SCC 7, para 82. In this case, the appellant was not improperly asked by the Crown to comment on the credibility of the Crown witnesses. He branded them liars on his own initiative. The trial judge was entitled to consider this as one of numerous factors that led to her describe the appellant as a “suspiciously defensive” witness. Having regard to her reasons as a whole, we see no basis for interfering with her credibility assessments in this case, which are entitled to substantial appellate deference.

C. The Sentence Appeal

As noted previously, the trial judge imposed a global sentence of nine years’ imprisonment. On behalf of the appellant, Mr. Badali argues that the trial judge erred in principle by treating as an aggravating factor that the appellant had turned members of the complainant’s extended family against her by telling them “that his daughter’s report of sexual abuse represented a lie”. Mr. Badali maintains that there was no evidence in the record to support this finding. He argues further that, even if there had been such evidence, the appellant’s continued assertions of innocence cannot be treated as an aggravating factor: see R. v. Valentini, p. 205.

We agree that it is unclear from the record what evidence the trial judge relied on to make this finding. She referred to s. 722 of the Criminal Code, RSC 1985, c C-46, which addresses the use of victim impact statements on sentencing. However, the complainant’s oblique comment in her victim impact that the appellant could “tell the family all the lies you want but just remember there is a god” in our view fell short of the mark.

However, even if we were to find that the trial judge erred in principle by making this finding without a sufficient evidentiary foundation, it would fall to us to sentence the appellant afresh, having due regard to the factual findings the trial judge made that have not been challenged or impugned on appeal.

The appellant’s crimes were very serious. He was found to have repeatedly subjected his daughter to sexual intercourse and other sexual touching over a five-year period, when she was between 12 and 16 years old. The impact his offences had on her were profound. The Crown sought a 10-year sentence, while the defence took the position that a fit sentence would be between 5 and 8 years. Having regard to the numerous aggravating factors that the trial judge correctly identified, including the very serious breach of trust by the appellant, we are satisfied that the nine-year sentence that she imposed – which was at the midpoint between the sentences proposed by counsel at trial – remains fit even if one of the aggravating factors cited by the trial judge is taken off the scales: see R. v. Friesen, 2020 SCC 9.

Accordingly, while we grant the appellant leave to appeal his sentence, we will not interfere with the sentence imposed by the trial judge.

D. Disposition

In the result, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.

“S. Gomery J.A.”
“J. Dawe J.A.”
“L. Madsen 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.

[2] The appellant was also found guilty of two sexual assault charges that were stayed pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729.