Court of Appeal for Ontario

Date: 2025-08-27

Docket: C69870[1]

Panel: Fairburn A.C.J.O., Roberts and Madsen JJ.A.

Parties

Between

His Majesty the King Respondent

and

J.M. Appellant

Counsel and Hearing

Counsel:

• Ingrid Grant, for the appellant
• Nicole Rivers, for the respondent

Heard: May 29, 2025

On appeal from: The conviction entered on October 12, 2018, and the sentence imposed on October 28, 2020, by Justice Kim A. Carpenter-Gunn of the Superior Court of Justice.

Reasons for Decision

[1] Introduction

[1] The appellant was convicted of sexual assault, sexual interference, invitation to sexual touching, two counts of assault, and threatening death. The offences were committed against his 12-13 year-old step-daughter. He was declared a dangerous offender, and given an indeterminate sentence.

[2] The appellant appeals his conviction and indeterminate sentence. He does not appeal the dangerous offender designation. For the following reasons, his appeals are dismissed.

A. Note on Procedure

[3] The appeal was heard, as is customary, without the appellant in attendance. The appellant's counsel attended and made able submissions. Following the hearing the appellant contacted the court stating that he had wished to be present at the hearing of the appeal. He was offered, but declined, the opportunity to listen to the recording. He then sent a letter to the court setting out information that he wished us to take into account. A copy of the letter was forwarded to counsel. In the unusual circumstances of this case we have taken the content of the letter into account.

B. The Conviction Appeal

[4] The appellant's conduct against his step-daughter was most serious. The trial judge found that over a period of more than one year, he masturbated in front of her, forced her to perform fellatio, and penetrated her vagina with his penis. His physical abuse included throwing her across the room and into a door and slamming her against a wall with his hands on her throat.

[5] The appellant argues that the trial judge made three errors: first, in relying on hearsay and irrelevant evidence regarding a witness's guilty plea to corroborate the complainant; second, in finding that the complainant's lack of embellishment enhanced her credibility; and finally, in relying on the complainant's level of detail to support her credibility and reliability findings.

[6] We find that the trial judge committed none of these errors and will address each in turn.

(i) The trial judge did not rely on hearsay or irrelevant evidence

[7] The evidence challenged by the appellant under this ground of appeal relates to an incident referred to by the trial judge as the "choking incident" and the "tablet incident". The complainant testified that she got in trouble for teaching her younger sibling to steal. The appellant grabbed her by the throat with two hands around her neck, saying: "don't wreck this marriage or I'll kill you." The complainant testified that she ended up on the floor, and that her mother, M.K., then punched her in the lip, stating that she should have aborted her. M.K. was charged in relation to the incident and entered a guilty plea.

[8] M.K. testified at trial. In direct examination she acknowledged the incident, said she did smack the complainant with an open hand, and stated that the appellant was present. She acknowledged entering a guilty plea in relation to the incident and receiving a conditional discharge. In cross-examination, she claimed to have no recollection of the event and did not know what assault she pled guilty to. The appellant denied the incident. While he acknowledged that he was frustrated by the complainant's theft, he denied putting her up against the wall or threatening her. He confirmed that M.K. used to tell the complainant she should have aborted her.

[9] The trial judge found that the fact that M.K. pled guilty to the assault on the complainant gave credibility to the fact that the choking incident occurred. Further, "as Mom's assault on [the complainant] took place during the same incident, the fact that the accused admits the mom of [the complainant] told [the complainant] many times, 'I should have listened to grandma and aborted you' also gives credibility to the fact that the choking incident occurred."

[10] We do not accept the appellant's argument that the evidence about M.K.'s guilty plea was either hearsay or irrelevant. M.K. admitted in chief that she struck the complainant and pleaded guilty to assault. The trial judge was entitled to reject her subsequent denial and apparent lack of knowledge about what her guilty plea was for. The trial judge did not rely on hearsay.

[11] Nor did the trial judge err in finding that M.K.'s evidence on this point was confirmatory of the complainant's evidence regarding the incident. As previously noted by this court in R. v. Varghese, 2024 ONCA 555, 439 C.C.C. (3d) 402, at para. 49, leave to appeal to SCC refused, 41475 (January 16, 2024): "[t]o be given confirmatory weight, evidence need only be more consistent with the complainant's version than with another version." Further, "[d]eciding whether evidence confirms or corroborates a complainant's allegations is 'part of the broader assessment of the complainant's credibility and reliability that trial judges must make based on the entirety of the evidence'": Varghese, at para. 49, citing R. v. G.H., 2023 ONCA 89, at para. 20. M.K. initially testified that the appellant was present when she hit the complainant, and the complainant testified that M.K.'s assault and the appellant choking her were part of the same incident. The trial judge was entitled to find that M.K.'s evidence provided confirmatory support for the complainant's evidence.

(ii) The trial judge did not err in noting a lack of embellishment

[12] In her evidence, the complainant described an event which did not form part of the charges against the appellant. This was referred to as the "private school incident." The appellant was working as a handyman at a private school. The complainant testified that on one occasion, the appellant brought her to the school after school hours, instructed her to lay down on the floor and pull her pants down, laid down beside her, and removed his pants too. The complainant said the appellant did not touch her. In her reasons, the trial judge noted that the fact that the complainant testified that nothing happened bolstered the complainant's credibility.

[13] While it is an error to reason that because an allegation could have been worse, it is more likely to be true (see R. v. Alisaleh, 2020 ONCA 597, at paras. 16, 17), lack of embellishment may be relevant to assessing credibility where the defence has alleged a motive to fabricate: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5; R. v. P.B., 2024 ONCA 96, at paras. 20, 22. At trial, the defence alleged that the complainant had a motive to fabricate; namely, that she wanted to be out of her mother's care. In cross-examination, it was put to her that she would "do anything" to get away from her mother. In closing submissions the appellant suggested that the complainant had a motive to lie. Read in the context of the record and the reasons as a whole, the trial judge did not use the complainant's lack of embellishment inappropriately. And, in any event, it was only one of many reasons that the trial judge gave for finding the complainant credible.

(iii) There was no error in the trial judge's reference to "details"

[14] We reject the appellant's argument, in his factum, that the trial judge erred in referring to the detailed nature of the complainant's allegations "to support her credibility and reliability." As argued by the Crown, the level of detail a witness can provide is a relevant consideration, and commenting on same is not, without more, an error. A review of the comprehensive reasons of the trial judge does not support the suggestion that the trial judge used the level of detail as a "make-weight" in support of the complainant's credibility.

C. The Sentence Appeal

[15] As earlier noted, the appellant does not challenge his designation as a dangerous offender, only the imposition of an indeterminate sentence. He argues that the trial judge erred in principle by misapprehending the expert evidence regarding age-related attenuation of violence and reoffending, and their collective opinion that risk could be managed through the imposition of a lesser order, namely a Long-Term Supervision Order ("LTSO"). This error, he asserts, requires reconsideration through a new dangerous offender hearing.

[16] By way of background, there was a significant body of evidence before the trial judge, including records related to prior criminal convictions, psychiatric evidence, and evidence from Correctional Services of Canada and the Parole Board. The appellant has an extensive and wide-ranging criminal record, including convictions for manslaughter, assault causing bodily harm, assault, robbery, and uttering threats. His convictions in 2017 relate to domestic violence offences against M.K., and his convictions in the current case involve sexual abuse of his step-child. The Crown aptly described the appellant as a "versatile" offender.

[17] Two experts testified: Dr. Pearce, a forensic psychiatrist at the Centre for Addiction and Mental Health, for the Crown; and Dr. Gojer, a forensic psychiatrist at the Royal Ottawa Healthcare Group, for the defence. The appellant declined to be interviewed by either expert, whose assessments were therefore based only on written materials. Dr. Pearce testified that the appellant suffers from substance abuse disorder, and anti-social personality disorder, characterized by a pattern or disregard for and violation of the rights of others. Application of the Sex Offender Risk Appraisal Guide (the "SORAG") placed him as "high risk", meaning that similarly scoring individuals recidivated sexually and/or violently at a rate of 80% over ten years. Dr. Gojer did not disagree with Dr. Pearce's diagnosis, and similarly scored the appellant on the SORAG as a high risk to reoffend violently and sexually.

[18] Both experts addressed the likelihood of offending behaviour attenuating with age: the so-called "burnout theory". Both testified that studies have shown that offending behaviour tends—when assessed on a group wide basis—to decrease over time. At the same time, burnout theory does not predict who will reoffend and who will not, nor does it predict when a specific offender will "burnout." Both experts concluded that age-related attenuation of risk was likely to impact the appellant's behaviour. Both concluded that there was reasonable expectation that the appellant's risk in the community would be contained upon the expiration of a LTSO.

[19] The trial judge considered the expert evidence carefully. She noted the evidence of Dr. Pearce that burnout theory is based on group data and "poorly characterized, and difficult to apply to any specific individual. She considered the appellant's specific pattern of offending, including that his offending had not been slowing since the 2010s, contrary to the understanding of Dr. Pearce. Further, she noted the evidence that it was not clear whether burnout theory applies to domestic violence offenders, a relevant factor given the appellant's 2007 conviction for offences against M.K. She considered the extensive records in relation to the appellant. Weighing the evidence before her she concluded that a LTSO could not adequately manage the risk posed by the appellant.

[20] The appellant effectively seeks a reweighing of the evidence before the trial judge, which is not this court's role. In our view, the trial judge fully considered the experts' evidence with respect to burnout theory within the context of the specific offender before the court, and ultimately rejected it. The trial judge committed no error.

D. Disposition

[21] The conviction appeal is dismissed. We grant leave to appeal the sentence, but dismiss the sentence appeal.

"Fairburn A.C.J.O."

"L.B. Roberts 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.