Court of Appeal for Ontario

Date: 2025-10-23 Docket: COA-22-CR-0096

Judges: Trotter, Wilson and Pomerance JJ.A.

Parties

Between

His Majesty the King Respondent

and

Mackenzie Bayly Appellant

Counsel

Patricia Brown, for the appellant

Luke Schwalm, for the respondent

Hearing

Heard and rendered orally: October 21, 2025

On appeal from: the conviction entered by Justice G. Wong of the Ontario Court of Justice, on November 15, 2021, and from the sentence imposed on June 7, 2022.

Reasons for Decision

[1] The appellant appeals from a conviction for sexual assault, alleging various errors.

[2] First, it is said that the trial judge erred in her application of the principles set out in R. v. W.D., [1991] 1 S.C.R. 74. We do not agree. The trial judge instructed herself correctly on those principles and returned to them when explaining her conclusions. She expressly found that the appellant's testimony did not raise a reasonable doubt. We see no error in the application of the burden and standard of proof.

[3] Similarly, we do not agree that an adverse inference was drawn from the appellant's silence upon arrest. The appellant did not remain silent. Rather, he provided a statement that was inconsistent with his trial testimony. He testified to several material details in court that were not mentioned in his statement to police. Those inconsistencies by omission were available for consideration by the trial judge and that consideration did no violence to the constitutional right to remain silent.

[4] The appellant points to the admission of testimony from a friend of the complainant. The trial judge did consider the evidence of the complainant's friend about a telephone call made on the night of the assault. However, the trial judge considered this evidence only on the issue of the complainant's demeanour. She referred to the fact that the complainant was crying and emotional but did not rely on the content of any prior statements made by the complainant. This is not a case in which a prior consistent statement was used in an improper fashion.

[5] Finally, while the trial judge considered the complainant's testimonial demeanour in her reasons for judgment, this was but one consideration and did not assume the level of prominence necessary for appellate intervention.

[6] For these reasons, the appeal is dismissed.

Gary Trotter J.A.

D.A. Wilson J.A.

R. Pomerance J.A.

Publication Ban

[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.