Court of Appeal for Ontario

Date: 2025-07-22
Docket: COA-24-CR-0244 & COA-24-CR-0259
Coram: Nordheimer, Coroza and George JJ.A.

Between:
His Majesty the King, Appellant/Respondent by way of cross-appeal
and
D.L., Respondent/Appellant by way of cross-appeal

Appearances:

• Manasvin Goswami, for the appellant/respondent by way of cross-appeal
• Lindsay Board and Robert Nanni, for the respondent/appellant by way of cross-appeal

Heard: March 17, 2025

On appeal from the convictions entered by Justice Amit Anil Ghosh of the Ontario Court of Justice on January 24, 2024, and from the sentence imposed on February 7, 2024.

George J.A.:

Overview

[1] D.L. was tried on a 20-count information arising from the alleged abuse of his former common-law partner. He was acquitted on three counts of sexual assault and one count of extortion. He was convicted on the rest of the counts, all of which alleged assaults and uttering threats. The trial judge imposed a conditional sentence of two years less a day. The Crown appeals the acquittals and seeks leave to appeal the sentence. D.L. appeals the convictions.

Evidence at Trial

[2] The incidents giving rise to the charges all occurred between January 2020 and D.L.’s arrest on April 30, 2020. D.L. was living with the complainant and their two children at the time.

[3] In January 2020, D.L. discovered that the complainant had been unfaithful. Even though the complainant acknowledged her infidelity, D.L. did not believe she had disclosed the full extent of it. On February 6, D.L. attempted to view the complainant’s laptop. The complainant resisted, which led to a struggle (the “laptop incident”). According to the complainant, D.L. dragged her by the hair, kicked her in front of the children, and choked her against a column. The complainant, who was worried about D.L.’s mental state, called 911 later that night which led to D.L. being taken to the hospital for a psychiatric evaluation. On D.L.’s version of events the complainant chased and hit him, and when he pushed her back she stumbled and fell. The children entered the room at some point. D.L. told them he was just helping the complainant up.

[4] On February 20, 2020, after being told of the laptop incident, the CAS conducted a home visit. During the visit D.L. was in the basement consuming alcohol. According to the complainant, D.L. was upset with her for involving the CAS. She testified that, after the CAS worker left, D.L. pulled her down, rolled on top of her, choked her, and smashed her head against the floor.

[5] According to D.L., he was emotional and upset because he had submitted to a paternity test earlier that day. He testified that when he was in the basement speaking on the phone with his father, the complainant came down and confronted him over the fact he had not participated in the CAS visit. D.L. said that it was the complainant who pushed him when he was trying to stand up, and that she left when she realized he was on a call with his father.

[6] D.L.’s father, who later acted as his surety, testified that he overheard some of the conflict and that the complainant appeared to him to be the aggressor.

[7] The complainant testified that, after the laptop incident, she was assaulted on other occasions. She described D.L. choking her, shoving her head against the headboard in the bedroom, calling her a “whore”, and demanding that she show him loyalty. She said that the choking happened “well over 30” times, progressing from every few nights in February 2020 to multiple times a day in April. The complainant testified that towards the end of March and the beginning of April, D.L. started using a timer on his phone so that every 15 minutes he would administer a punishment. In addition to choking her and calling her names, D.L. forced the complainant to have rough sex, pinched her nipples, made her strike herself with objects, and described how he would kill her.

[8] In cross-examination, the complainant was confronted with the fact she had not mentioned the use of a timer in her police statement. She insisted that she had told an officer about that detail.

[9] The complainant recalled one incident in late March 2020 when D.L. grabbed her throat and pushed her up against the bedroom window. Their daughter heard the scream and came into the room, but was promptly told to leave.

[10] The complainant also described an incident where D.L. held a knife to her stomach. She testified that while she was cutting fruit in the kitchen, D.L. came in and blamed her for having “ruined everything”. He then proceeded to throw the complainant against the counter, pick up a knife, and say “I [should] just stab you here.” He put the knife back when their daughter, who was standing nearby, made a sound.

[11] D.L. denied ever assaulting or threatening the complainant. He considered her infidelities to be “not extremely” important because he had also cheated on her. He testified that he believed their relationship should end and that the complainant was looking to rent an apartment so that she could move out.

[12] On April 29, 2020, the complainant alleged that D.L. told her to stab her thigh with a pin. When she failed to push it deep enough into her flesh, D.L. drove it in himself using his thumb. The complainant testified that, on that same date, after the children were put to bed, D.L. asked her to have sex in the living room. D.L. told the complainant that he would understand if she did not want to, but that it would not be good if she was not on “Team [D.L.]”. The complainant testified that Team [D.L.] referred to those loyal to him, and that those who were not loyal would die in terrible ways. After telling D.L. that he was “breaking” her, the complainant took off her shorts, got on top of D.L., and had sex with him on the couch.

[13] D.L. offered a very different account of what happened that night. He testified that he received a message from the complainant asking that they take a bath together. He says they then enjoyed some wine and had an amicable conversation while together in the bathtub. They had consensual sex in the bathroom. Upon returning to the bedroom D.L. saw the complainant pushing a pin into her own thigh while declaring that she was willing to experience pain in order to keep their relationship intact. D.L. says he yelled in surprise as he feared needles.

[14] Both D.L. and his father testified to D.L. having an intense fear of needles; they each claimed that D.L.’s fear was so strong that he had fainted upon entering a COVID-19 vaccination site.

[15] The complainant testified that the next morning D.L. told her to collect all of their pushpins so that he could insert them under her nails. She says she pretended to comply with D.L.’s demand but then slipped out of the house. D.L. ran after her but the complainant was able to get into their vehicle and lock herself inside. According to the complainant D.L. said that he was going to kill the children if she did not get out. She called 911. The police arrived and arrested D.L.

[16] According to D.L., the complainant was acting strange and had made inappropriate comments in the presence of the children. Before he could talk to the complainant about her comments, she locked herself in the vehicle. D.L. says he tried to reason with her calmly, to no avail.

[17] Text messages between D.L. and the complainant were entered into evidence at trial. So were photographs depicting the complainant’s injuries.

[18] The court also received a police occurrence report from March 21, 2020. This report recorded that D.L. called the police that day as the complainant wanted to take the children to her mother’s, and he had refused to let her. According to D.L., the police told them that given the pandemic-related public health directions at the time it would not be prudent for the complainant to take the children. The complainant did not tell the police about the abuse. She testified that while the police spoke with them separately outside a grocery store, D.L. kept watching her and that the police said they could not do anything because of COVID-19 protocols.

Decision Below

[19] The trial judge convicted D.L. on all charges other than the three counts of sexual assault and the extortion. In addition to finding D.L.’s explanations to be casually dismissive and self-aggrandizing, the trial judge rejected his evidence as inconsistent. The trial judge did not accept the evidence of D.L.’s father either.

[20] The trial judge viewed certain flaws in the complainant’s evidence as understandable. Her reluctance to tell the police and the CAS about the abuse was because she feared D.L., did not want to lose custody of the children, and held on to hope that the relationship could be salvaged. The trial judge found that the complainant’s inability to connect some of the photographed injuries to any particular assault was due to the frequency of the abuse. The trial judge found further that omissions in the complainant’s police statement, including her failure to mention the timer, were immaterial.

[21] With respect to the sexual assault and extortion charges, the trial judge found that the complainant “acquiesced” to D.L.’s sexual advances due to fear and pressure as well as a conflicted desire to repair their relationship. However, the trial judge found that this was a “generalized fear”, and that D.L. had not made any proximate threats. The trial judge had a reasonable doubt about some of the sexual assault allegations because of the complainant’s “equivocal and unsure responses about whether she consented”.

[22] With respect to sentence, the trial judge noted that the complainant had been diagnosed with complex traumatic stress disorder as a result of the intimate partner violence, which affected her ability to work. He noted also, as mitigating factors, that D.L. was a first-time offender, successful business owner with many employees, active in his community, and had been subject to highly restrictive bail conditions. D.L. filed several letters of support, including from his new spouse.

[23] The trial judge recognized that denunciation and deterrence are the primary objectives when sentencing someone for intimate partner violence that involves choking, weapons, and bodily harm, but in his view these objectives could be satisfied through a conditional sentence. The trial judge imposed a conditional sentence of two years less a day.

Grounds of Appeal

[24] The Crown appeals against the acquittals on the basis that the trial judge erred by requiring proof that the complainant communicated her lack of consent to establish the actus reus of sexual assault. The Crown also seeks leave to appeal the sentence. It argues that the sentence is demonstrably unfit and that the trial judge committed errors in principle.

[25] D.L. appeals against the convictions, raising various grounds, including that the trial judge:

1. erred by failing to resolve material inconsistencies and omissions in the complainant’s evidence;
2. misapprehended D.L.’s evidence about his feelings regarding the complainant’s infidelity;
3. improperly concluded that D.L.’s father had a motive to fabricate because he was D.L.’s surety;
4. relied on bad character evidence when assessing D.L.’s evidence; and
5. provided insufficient reasons and rendered unreasonable verdicts.

[26] The last ground of appeal captures counts 5, 7, 9-10, 11-15, and 17-19; the complaint is that 1) with respect to some of these counts, the dates specified in the information do not align with the evidence, and 2) with respect to the others there is no evidence to support them at all. In relation to these counts we must decide whether to 1) allow the appeal on the basis that these are unreasonable verdicts or because the trial judge provided insufficient reasons, 2) stay them pursuant to Kienapple, or 3) with respect to the counts where the specified dates may not align with the evidence, amend the information pursuant to s. 683(1)(g) of the Criminal Code, RSC 1985, c C-46. After the hearing, the panel invited the parties to make further submissions on this third issue.

[27] I will begin by addressing the Crown’s appeal against the acquittals and against sentence. I will then turn my focus to the appellant’s conviction appeal.

Discussion

Crown Appeal against Acquittal

[28] As noted above the trial judge acquitted D.L. of three counts of sexual assault (counts 6, 8, and 20) and of one count of extortion (count 4).

[29] On appeal, Crown counsel argues that the trial judge made clear umbrella findings of credibility in favour of the complainant, concluding that he “fundamentally” and “completely” believed her. The error, the Crown says, lies in the trial judge’s explanation for entering acquittals on these counts, despite his key umbrella findings:

[The complainant] was equivocal and unsure about some of the sexual assault allegations as it related to inferred consent, or more accurately, consent conveyed through conduct. Her evidence on these incidents caused me to have a reasonable doubt about the absence of communicated consent through either words or conduct.

[30] The Crown submits that the question of whether a complainant consented is a “purely subjective analysis, determined by reference to the complainant’s internal state of mind at the time of the touching” and therefore it was not required to “establish that the complainant communicated [her] lack of consent to the accused in order to establish the actus reus of sexual assault.”: R. v. G.F., 2021 SCC 20, paras 25, 29; R. v. F.A., 2022 ONSC 2487, para 13. Put simply, the complainant did not have to express her lack of consent to D.L. for the actus reus of sexual assault to be established.

[31] The Crown, anticipating an argument that the trial judge was in fact addressing the mens rea for sexual assault – which recognizes the defence of honest but mistaken belief in consent – submits that this could not have been the basis for the acquittals in this case. First of all, the reasons make no mention of honest but mistaken belief in consent. And second, D.L. did not even advance that argument. In any case, the Crown says this defence, which is subject to several legal limits, had no air of reality given the abusive and manipulative steps D.L. took prior to sexual activity which necessarily undermined the complainant’s ability to provide genuine consent.

[32] The Crown’s burden when appealing an acquittal is “very heavy”. The scope of a Crown appeal is limited to legal questions that do not impugn the underlying facts or the trial judge’s evaluation of the evidence: R. v. Hodgson, 2024 SCC 25, para 33. And even when a trial judge commits an error of law, “acquittals are not overturned lightly”. The Crown must demonstrate, with a “reasonable degree of certainty”, that the verdict would not necessarily have been the same had the error not occurred: Hodgson, at para. 36.

[33] To properly address this ground of appeal, it is important to characterize the two different categories of sexual activity the complainant testified about. She, first, testified about a specific incident of sexual intercourse on April 29. She then testified to generic and unspecified incidents of sexual punishment. With respect to the first category the question was whether the sexual intercourse ever happened, while the issue in respect of the second category of assault was whether any sexual activity between D.L. and complainant from January to April was non-consensual.

[34] With respect to the April 29 allegation, the complainant testified that D.L. asked her to have sexual intercourse on the couch. The extortion count, which is related to this incident, alleged that D.L. told the complainant that he would understand if she did not want to have sex but implied that if she declined she would not be on “Team [D.L.]”, which the complainant interpreted to mean that he would kill her if she did not have sex with him. During cross-examination, however, the complainant could not remember if they had sex after the bath earlier that evening. Then, when it was specifically suggested to her that they in fact had sex that night after the bath and that it was consensual, the complainant said, “it’s possible”. The defence position was that given the complainant’s equivocation as to whether the incident on the couch happened at all, D.L. had to be found not guilty of the April 29 sexual assault. Even the trial Crown agreed that if the trial judge accepted the defence position on this point an acquittal would have to follow.

[35] I agree with the Crown on appeal that the trial judge’s language about communicated consent is problematic. However, in the end, the trial judge accepted the defence position outlined above which meant that, as the Crown at trial conceded, D.L. had to be acquitted. Put another way, despite the trial judge’s reference to the complainant not sufficiently expressing her lack of consent (which is not relevant to the actus reus of sexual assault), when the trial judge’s reasons are read as a whole and considered in the context of the record, what he essentially found was that the Crown had not proven the absence of consent beyond a reasonable doubt. I would therefore reject this ground of appeal in relation to the April 29 sexual assault allegation.

[36] The Crown argues further that the trial judge erred by holding that the “veiled threats” about not being on Team D.L. were insufficient to establish extortion. It points to the trial judge’s oral reasons for judgment, which preceded his later written reasons, where he said that he was unsure if the “veiled threats [the complainant] testified to were sufficient to make out that [D.L.] was extorting sex from her”.

[37] It is true that “a veiled reference may constitute a threat if it is sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she fears or would prefer to avoid”: R. v. Barros, 2011 SCC 51, para 61. However, I do not read the trial judge’s reasons as implying that the veiled threats the complainant testified to were legally incapable of establishing extortion. He appears to have considered the threats as alleged in this case to have been insufficient, in the circumstances, to convey the consequences feared by the complainant. In my view, the trial judge did not err in his treatment of the extortion count.

[38] Nor is there any basis on which to disturb the acquittals on the sexual assault allegations about generic and unspecified incidents of sexual punishment, which were captured in counts 6 and 8. The Crown’s argument is essentially that because the trial judge “fundamentally” and “completely” believed the complainant’s evidence, he had to find D.L. guilty of these two counts.

[39] While the trial judge did say he, generally speaking, believed the complainant, it is apparent that he did not in some respects, or that he at least had concerns about her reliability. For instance, the trial judge’s reasons make it clear that he did not accept the complainant’s evidence about whether, in some cases (i.e., April 29), a sexual assault occurred, and in respect of others, whether sexual activity was non-consensual. As counsel for D.L. puts it, “[a]t its highest, the complainant described [D.L.] waking her up to have sex at non-descript dates and times. She stated that she could not remember a specific incident, nor when it would have happened”. I agree. In light of the complainant’s equivocal answers about whether she consented to sex or not, and uncertainty about when these various incidents occurred, the trial judge had little choice but to find D.L. not guilty on these charges.

Crown Appeal against Sentence

[40] The trial judge imposed concurrent conditional sentences of two years less a day to be followed by twelve months’ probation on all counts. Should we allow the appeal against the acquittals and substitute convictions the Crown submits that we should impose a six-year penitentiary sentence. Even if we dismiss its appeal against acquittals the Crown argues that the sentence imposed is demonstrably unfit and that the trial judge committed errors in principle that had an impact on sentence. In the event we dismiss its appeal against acquittals but allow the sentence appeal the Crown asks that we impose a three-year penitentiary sentence.

[41] I begin this discussion by noting that, before the trial judge, the trial Crown sought an 18-month jail sentence. It now asks that, should we dismiss its appeal against acquittals and D.L.’s appeal against convictions, we impose a three-year sentence. This is twice as high as the sentence the Crown sought in the court below.

[42] The Crown’s position partly relies on scholarly articles as well as debates and reports from the Canadian and New Zealand parliaments, which speak to the seriousness of choking and of intimate partner violence generally. The Crown submits that these materials, which were not filed in the court below, provide “context” we can consider in fashioning a fit and proper sentence.

[43] In my view, the reports and articles filed by the Crown on appeal should not be relied on. As this court held in R. v. Jarvis, paras 16-17:

Generally, the test [for fresh evidence] tends to be applied somewhat less rigorously on sentence appeals. However, where it is the Crown that seeks to introduce fresh evidence on its sentence appeal, it is appropriate to pay special attention to the due diligence requirement. It is problematic to ask a court to increase a sentence many months after the sentence was initially imposed on the basis of material that could have been produced before the trial judge. In R. v. Levo, 105 C.C.C. (3d) 21 at 32, this court emphasized the undesirability of the prosecution placing this kind of material before the appeal court for the first time. In that case, Finlayson J.A. also raised a concern about “simply [placing] on the record articles and studies that were intended for a different and wider audience” such as the general public or a parliamentary committee.

Much of the material sought to be admitted in this court could have been placed before the trial judge […] But, having made that tactical decision [not to tender this material at trial], the Crown should not now be able to revisit the matter on appeal. (Emphasis added.)

[44] While the Crown did not file a motion to introduce fresh evidence, and irrespective of whether we call this “context”, Jarvis makes it clear that we should not rely on materials like this for the first time on appeal.

[45] Nor should we countenance the Crown advocating for a sentence that is twice as high as the one it sought at trial. Such an approach can, as in this case, raise issues of fairness. I say that because in the court below the Crown not only sought an 18-month sentence, it conceded that, depending on how much Downes credit was granted, the sentence could reasonably go as low as 15 months. As the Crown had already expressly conceded that a reformatory sentence was in order, it should not now be permitted to resile from that concession and seek a penitentiary sentence on appeal.

[46] Had the Crown taken a different position at the sentencing hearing, we might be in a different place, but having set the parameters by asking for an 18-month sentence the principal question the trial judge had to answer was whether any jail sentence was to be served in a custodial facility or conditionally in the community. I note, parenthetically, that the imposition of a custodial sentence longer than the period of incarceration sought by the Crown – which is what the trial judge did by almost six months – is consistent with the recognition in R. v. Proulx, 2000 SCC 5, paras 54, 104, 127 that a conditional sentence is generally more lenient than a jail term of the same duration and that trial judges are not required to set the length of a conditional sentence to be equivalent to a custodial sentence that would otherwise be imposed.

[47] While certainly a lenient sentence, I cannot say that a conditional sentence of two years less a day is demonstrably unfit. To meet the “very high threshold” of establishing that a sentence is demonstrably unfit, the Crown must establish that the sentence was “clearly unreasonable”, “clearly inadequate”, or a “substantial and marked departure” from what a proper sentence would be: R. v. Lacasse, 2015 SCC 64, paras 51-52. The trial judge’s concerns about the impact of incarceration on this offender were justified, as were his concerns about its impact on D.L.’s family (including his ability to pay child support), his community, and his employees and business associates who rely on him.

[48] With respect to his family, in particular his children, the sentence was consistent with this court’s direction that family separation consequences must be prevented and mitigated as much as possible in order to give full effect to the principles of restraint, rehabilitation, and mitigating and collateral consequences: R. v. Habib, 2024 ONCA 830, paras 46-47. As this court held in Habib, which was released after D.L. was sentenced, “family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range”, which is true “even for grave offences that require deterrence and denunciation”: at para. 45.

[49] It would appear also that the trial judge’s decision to impose this relatively lenient sentence was informed by the fact that D.L. had no criminal record and had exhibited longstanding prosocial behaviours.

[50] The sentence was informed further by the parties’ submissions on Downes credit, which the trial judge said he would consider as mitigation in a qualitative way. At the end of the day, while a sentence may seem lenient or harsh, that does not necessarily render it demonstrably unfit: see Lacasse, paras 53-55.

[51] Nor did the trial judge commit an error in principle that had an impact on the sentence. His reasons, given the parties’ agreement on the importance of denunciation and deterrence in the context of domestic abuse, focused on these sentencing objectives and adequately addressed how a conditional sentence could achieve them. While the Crown submits that the sentence imposed does not reflect the principle of proportionality, it does not identify any specific error beyond its disagreement with the trial judge’s weighing of certain aggravating factors.

[52] Therefore, while I would grant the Crown leave to appeal sentence I would dismiss the sentence appeal.

D.L.’s Appeal against Conviction

[53] As noted earlier in these reasons, the appellant was convicted on sixteen counts: six counts under s. 267(c) for assaulting the complainant by choking; one count under s. 267(a) for assaulting the complainant with a pin; two counts under s. 267(a) for assaulting the complainant while threatening to use a knife; one count under s. 267(b) for assault causing bodily harm; three counts under s. 266 (assaults); and three counts under s. 264.1(2) for uttering threats. And, as discussed, he was acquitted on four counts – three counts of sexual assault and one count of extortion. D.L. argues that the only safe verdicts are the acquittals.

[54] D.L. raises several grounds of appeal. He argues that the trial judge 1) erred by failing to resolve material inconsistencies and omissions in the complainant’s evidence, 2) misapprehended D.L.’s evidence about his feelings regarding the complainant’s infidelity, 3) improperly concluded that D.L.’s father had a motive to fabricate because he was D.L.’s surety, and 4) relied on bad character evidence when assessing D.L.’s evidence. I will deal with these grounds before addressing D.L.’s final argument, which is the trial judge provided insufficient reasons and/or rendered unreasonable verdicts in respect of counts 5, 7, 9-10, 11-15, and 17-19.

Material Inconsistencies

[55] D.L. contends that there are four specific inconsistencies and omissions in the complainant’s evidence. He submits that the trial judge did not resolve any of them, and that, if he had, the outcome would have been different.

[56] The first inconsistency is between complainant’s description of the March 21, 2020 incident, when the police spoke with her and D.L., and what is actually recorded in the occurrence report prepared by the officer, which D.L. says supports his version of events.

[57] According to the complainant, when one of the officers asked her if she was okay she responded no, and that they told her due to COVID they could not intervene unless she was hospitalized or dead. The occurrence report, however, did not indicate any reporting of abuse or fear for safety. According to D.L. this inconsistency was a “major linchpin of the defence position” which the trial judge just brushed aside. He argues further that, as the police occurrence report was filed as an agreed statement of fact, it was not open to the trial judge to effectively disregard it. According to D.L., the trial judge was compelled to resolve this inconsistency in the complainant’s evidence by rejecting her in-court testimony and accepting the police occurrence report as the truth.

[58] I reject this argument. First, the trial judge did not impermissibly make findings that conflict with an agreed-upon fact. The occurrence report simply recorded that the police responded to a call by D.L. It did not speak to D.L.’s motives to make this call. This is an important detail given the trial judge’s finding that D.L. placed this call to pre-empt the complainant from doing so; a finding that was open to the trial judge. More importantly, there is no basis to conclude that the parties, by agreeing to file the occurrence report, meant to convey that its contents represented the entirety of what happened on March 21. It is likely that the parties agreed to file the report to obviate the need to call the officer who authored it. I note also that in their closing submissions defence counsel acknowledged that it was open to the trial judge to find that the report “does not contain everything that happened”. That is, in effect, what the trial judge did.

[59] The second inconsistency is in relation to the laptop incident. D.L. contends that the complainant gave two detailed and vivid, but conflicting, accounts of what happened – first in her statement to the police and then when she testified. In one account she said that D.L. had her laptop in his possession before he assaulted her; in the other he did not gain control of it until after the assault was largely over. D.L. argues that the trial judge, who found that the two accounts were not inconsistent with each other, failed to recognize that, while each is a credible account, both could not be true. He likens this error to the one committed in R. v. Kiss, 2018 ONCA 184, where this court ordered a new trial because the trial judge failed to resolve material inconsistencies where there were two irreconcilable versions of events.

[60] I reject this submission as well. It was open to the trial judge to find that this did not amount to a material inconsistency. The trial judge, who rejected D.L.’s argument that on the version of events provided to the police the laptop “played no part” in this incident, clearly turned his mind to what was said to be the differences between this statement and the complainant’s testimony. While acknowledging there were differences the trial judge held that they were immaterial. I would not interfere with this assessment of significance, which is owed deference.

[61] The next inconsistency has to do with the allegation that D.L. used a timer to determine when he would assault the complainant. When examined in chief the complainant said she did not know how many times D.L. choked her, but then volunteered that near the end of March, or beginning of April, D.L. “started setting a timer on his phone so that for every 15 minutes he would start to administer another punishment.” In cross-examination the complainant acknowledged that this detail does not appear in her recorded police statements, but insisted that she did tell the police about it. According to D.L., this was a significant omission because the timer represented an escalation of the abuse; the complainant even referred to the relevant time period as “the timer times”.

[62] I am not persuaded by this argument. D.L. made this argument to the trial judge. The trial judge engaged with this submission and ultimately concluded that it was not a fact of “sufficient contextual value” to undermine the complainant’s credibility. To now adopt D.L.’s submission that it had greater contextual value than the trial judge recognized would be to reweigh the evidence. That is not our task. Another judge might have considered the use of the timer important, but it was open to the trial judge to conclude that the timer was not an act of physical violence and did not go to the essential elements of any of the offences charged.

[63] Nor am I persuaded by D.L.’s submissions about the fourth inconsistency, namely that the trial judge failed to grapple with evidence that undercut the complainant’s narrative about D.L.’s control over her. The complainant was clear that while D.L. did attempt to control her in several different ways, including financially, he was also sometimes kind, loving and “really nice”. The complainant acknowledged their relationship’s ups and downs. That being the case it is unsurprising that there were text messages between the two which did not reveal controlling behaviour and which suggested that all was good between them. These messages did not undermine the complainant’s evidence. The trial judge was well aware of the fact that this was a complicated relationship and understood D.L.’s position on the text messages:

The digital communications between the spouses did not cause me to have a doubt about the evidence of [the complainant]. Their communications captured the complexities of a deteriorating marriage where very young children are ensnared. There is conflict, anger, assertion, and fear. I find [that the complainant] reasonably explained that any expression of her confidence or assertiveness in these messages belied his emotional and physical control at that stage of the relationship. It was a complex dynamic at that time.

[64] The appellant advances several other grounds of appeal, including that the trial judge misapprehended D.L.’s evidence about the complainant’s infidelity; improperly concluded that D.L.’s father had a motive to fabricate because he was D.L.’s surety; and that he improperly relied on bad character evidence. The trial judge committed none of these errors.

[65] The trial judge did not misapprehend D.L.’s evidence about his feeling towards the complainant’s infidelity. He pointed out that D.L. first resisted the suggestion that he was unduly angered by the complainant’s infidelity (as a motivation to do her harm), but later acknowledged its significance in bringing their relationship to an end as it called into question whether he was the biological father of their children. In my view, it was open to the trial judge to treat D.L.’s attempts to downplay the importance of the complainant’s infidelity in one sense, and to elevate its significance in another, as a “poignant internal and thematic inconsistency” in his evidence.

[66] D.L. argues further that the trial judge erred in rejecting his father’s evidence on the basis that he was D.L.’s surety and in finding that “there is an ‘air of reality’ to a motive to fabricate.” D.L.’s argument seems to suggest that the trial judge was compelled to accept his father’s evidence that he did not know of the allegations against him. The trial judge was not required to accept that denial. He reasonably rejected it based on other concerns he had with the father’s evidence, including that his testimony about the extent of D.L.’s fear of needles was “incredible and unlikely”. In the end, the trial judge did not reject the father’s evidence just because he was D.L.’s surety, he did so because he did not find it to be credible in substance. There is no basis to interfere with the trial judge’s assessment of D.L.’s father’s evidence.

[67] D.L. argues further that the trial judge relied on bad character evidence – his infidelities and his drinking in the basement during the CAS visit – to impute guilt. The trial judge did not do that. Evidence reflecting poorly on D.L. was featured in the complainant’s evidence, and to some extent in his own. This evidence was essential for narrative purposes. The trial judge expressly stated that he was not using D.L.’s conduct during the CAS visit to impute guilt, nor is there any indication in the trial judge’s reasons that he used this or D.L.’s infidelities to bolster the Crown’s case. I would therefore reject this ground of appeal.

Insufficient Reasons and Unreasonable Verdicts

[68] As discussed already, the appellant was charged and tried on a 20-count information. He was convicted of 16 counts and acquitted of 4. D.L. argues that some of the counts were only addressed in passing and others completely ignored in the trial judge’s reasons. D.L. asks that the convictions on all of these counts be set aside on the basis that, for some, the trial judge’s reasons are insufficient, and for the others they represent unreasonable verdicts. He seeks the following remedies:

i) Counts 5, 7, 10, 11, 12, 13, 14 (or 15), and 19 – Acquittals due to unreasonable verdicts.
ii) Count 9 – A new trial as it was it an unreasonable verdict.
iii) Counts 17, 18 – A new trial on the basis that the trial judge failed to provide sufficient reasons.

[69] The Crown argued, at the appeal hearing, that this ground of appeal takes issue with how the trial judge translated his credibility findings into convictions. It disagreed that any of the disputed convictions are unreasonable or in any way compromised. Crown counsel reminds us that “as a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the Indictment” unless its failure to do so prejudices the accused or the timeframe is an essential element of the offence: R. v. S.M., 2017 ONCA 878, paras 10, 14; R. v. McGee, 2014 ONCA 358, paras 6-8.

[70] After the oral hearing correspondence was sent to counsel advising that the panel remained concerned about this aspect of D.L.’s appeal. We sought written submissions from the parties, in particular on whether the Crown was now seeking to have the information amended to conform with the evidence as it relates to the times when the offences occurred pursuant to s. 683(1)(g) of the Criminal Code, RSC 1985, c C-46, and if so what specific amendments were sought and to which counts.

[71] In its written submissions the Crown repeated its position that the information did not need to be amended as it did not have to prove that offences were committed on the dates set out in the information. Only in the alternative did it ask that we amend the information and stay certain counts under Kienapple.

[72] D.L. argues that, since this court’s power to amend is discretionary (R. v. Ludwig, 2018 ONCA 885, para 52), the panel should decline to amend on the basis that doing so on appeal carries inherent prejudice.

[73] It seems to me that much of D.L.’s criticism relates not to the insufficiency of the reasons or the reasonableness of the verdicts, but to the discrepancies between what is recorded in the information and the evidence at trial. In my view, the trial judge’s reasons adequately explain why he convicted D.L. on the impugned counts, and, setting the range of dates aside, the evidence supported the convictions.

[74] The range of dates within the counts in this case are unconnected to the essential elements of the offences. Their significance is further undermined by the trial judge’s finding that the violence and threats were “regular and routine” and that many of the alleged inconsistencies in the complainant’s evidence were immaterial. Furthermore, other than counts 7, 12 and 13 – which I will address in a moment – D.L. has not pointed to any specific prejudice in the way the Crown particularized the counts in the information.

[75] I will address each count in turn.

[76] Count 5 alleges an assault causing bodily harm on April 24. This refers to the pin incident,[4] which should be stayed as duplicative of count 3 (assault with a pin). While the date on count 5 should be April 29, and not April 24, there is no need to amend given the stay: see Ludwig, para 52.

[77] Counts 7, 12, and 13 allege assaults and choking on April 24, 25, and 27, respectively. The trial judge accepted the complainant’s evidence that by March there were “multiple incidents of choking and abuse a day.” D.L. hypothesizes a risk that the trial judge engaged in cross-count reasoning by using specific incidents described in other counts to justify convicting on the counts that lacked dated evidence. There is simply no basis to infer this.

[78] D.L. also points to evidence that the complainant was staying with her sister and her mother from April 24 to 27. Notably, D.L. did not present an alibi at trial. While the parties did make arguments at trial about the dates of photographed injuries – which is no longer at issue on appeal – the dates otherwise played no discernable role in D.L.’s defence at trial.

[79] D.L.’s appeal counsel points out that being wrong about when an offence occurred could be used to undermine a witness’s reliability. While that may be true in some cases, this was less of a concern here given the allegation was one of frequent abuse escalating over a relatively short period of time.

[80] That said, I would stay counts 7, 12, and 13 as duplicative of the conviction on count 16 (assault by choking between March 15 and April 9). I pause here to note that, as a general proposition, needless complication and confusion could have been avoided if the police had laid a single charge of assault to capture a pattern of physical abuse against the same complainant over time: R. v. Sandhu, 2009 ONCA 102, para 19.

[81] The conviction on count 9, assault by choking between February 1 and 29, is not an unreasonable verdict. The complainant testified to being choked when sleeping, which started “within a few days after” the laptop incident.[5] The trial judge accepted this evidence.

[82] Count 10, an assault between January 1 and 31, refers to the laptop incident.[6] Defence counsel suggested to the complainant during cross-examination that the incident occurred on February 6, to which she agreed. The trial judge’s failure to connect his detailed analysis of the laptop incident to a specific date or a count on the information, while not particularly helpful on review, does not mean he failed to provide sufficient reasons.

[83] Count 11 alleged an assault and a threat on April 30. It is clear that the trial judge accepted the complainant’s evidence that D.L. threatened to insert pins under her nails (assault) and threatened to harm the children (uttering threats), which is the conduct informing this count.

[84] Counts 14 and 15 allege assaults with a knife, on or about April 20 and between April 1 and 7, respectively. The trial judge found “two weapons-aided assaults involving the threatened use of a knife.” However, while the complainant testified to one knife incident[7] she said that the other assault was with a metal file she called an asp. The trial judge grappled with this inconsistency. He noted that there was no reference to an asp in the complainant’s police statements, but ultimately found this omission to be immaterial. While his reasons could have been clearer and more specific, I have no trouble concluding that one of the knife-aided assaults referred to an incident with the asp, as described by the complainant. I note that there is not a material difference, in this context, between a knife and a metal file.

[85] Count 18 repeats count 17, as both allege the uttering of threats between January 31 and April 30. The trial judge found D.L. to have uttered death threats “at various times”. Given the regularity of the violence and threats, D.L.’s argument that the trial judge was required to make specific findings of what the threats were, and when they were specifically made, has no merit. However, I would stay count 18 as duplicative.

[86] The power to amend an information on appeal is to be exercised sparingly: Ludwig, para 52. If the sufficiency of any count is raised at any point, the best approach is for trial judges, after receiving input from the parties, to amend an information to accord with the evidence, as long as no prejudice would ensue.

[87] In any event, there is no need for amendment on appeal. I would dismiss this ground subject to the stays described above.

Conclusion

[88] For these reasons, I would dismiss both the Crown’s appeal against the acquittals and D.L.’s appeals against convictions. I would stay counts 5, 7, 12, 13, and 18. While I would grant the Crown leave to appeal sentence, I would dismiss the sentence appeal.

Released: July 22, 2025
“I.N.”
“J. George J.A.”
“I agree. I.V.B. Nordheimer J.A.”
“I agree. S. Coroza J.A.”

Footnotes:

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

[2] Kienapple v. R., [1975] 1 S.C.R. 729.

[3] R. v. Downes.

[4] The trial judge at para. 104 of his reasons found that D.L. caused the complainant injury by pressing the pin into her leg, and then stated in the next sentence that D.L. “in committing the assault particularized at count 5…also caused her bodily harm.”

[5] See Transcript Vol. 1, January 9, 2023, at p. 24.

[6] The assault in count 10 captures D.L.’s conduct that occurred before he choked the complainant. Count 1 also refers the laptop incident and specifically mentions choking.

[7] See Transcript Vol. 1, January 9, 2023, at p. 51.