COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.S., 2025 ONCA 775[^1]

DATE: 2025-11-13

DOCKET: C70495

Miller, Paciocco and Favreau JJ.A.

BETWEEN

His Majesty the King

Respondent

and

M.S.

Appellant

Janani Shanmuganathan, appearing as amicus curiae

Kevin Rawluk, for the respondent

Heard: November 6, 2025

On appeal from the convictions entered by Justice P. Andras Schreck of the Superior Court of Justice, on November 5, 2021, and from the sentence imposed on April 12, 2022, with reasons reported at 2022 ONSC 2279.

REASONS FOR DECISION

[1] Mr. S. received a global sentence of eight years after being convicted of sexual offences committed against three adolescent women. Two of the complainants, Ms. K. and Ms. C. are sisters, and Ms. S. is their cousin. Mr. S. was a friend of the complainants’ families, enjoying a close “uncle-niece” relationship with each of the complainants. All three of the complainants slept from time to time, along with other family members, at Mr. S.’ home, and the great majority of the incidents occurred when the complainants were in bed or asleep.

[2] Mr. S. pursued one ground of his conviction appeal. Although he did not advance arguments in favour of his application for leave to appeal his sentence, he has not abandoned his sentence appeal. At the end of oral argument, we dismissed his appeal in its entirety. These are our reasons.

[3] We dismissed the conviction appeal because we found no error in the trial judge’s admission or treatment of the testimony of each complainant, across counts, as similar fact evidence. Mr. S. took no issue before us with the legal rules the trial judge applied or with his conclusion that similarities in the allegations were probative of the allegations occurring and that the probative value of this evidence was not outweighed by the risk of prejudice in a judge-alone trial. Mr. S. took issue only with the trial judge’s finding that the Crown had established on a balance of probabilities that accidental tainting had not occurred. It is his position that the trial judge erred in law in his analysis relating to accidental tainting and that given the risk of cross-count tainting he should not have permitted the cross-count use of testimony, which impacted on the trial judge’s decision to convict.

[4] We are not persuaded that the trial judge erred. The trial judge did not reverse the burden of proof by noting that there was no evidence of changes in the accounts of complainants linked to their discussions. He recognized explicitly that given the air of reality that tainting had occurred, the burden was on the Crown to establish that it had not, on a balance of probabilities. In determining whether the Crown had discharged its burden the trial judge was obliged to consider whether there was evidence of changes in the testimony that could be linked to discussions between the women, for had there been, the risk of tainting would not be rebutted. He was simply observing that there was no such evidence. There is no indication that the trial judge relied upon this absence of evidence as an affirmative indication that no tainting occurred.

[5] Similarly, the trial judge made no error in relying on the dissimilarities in the testimony of the complainants in finding accidental tainting to be improbable. It stands to reason that details that differ from other accounts are not likely to have been the product of suggestion of those other accounts. The core allegations made by each complainant in this case differed meaningfully. It is important to understand the trial judge’s reasoning in this regard in the context of his general observation that given the nature of the allegations, “[t]his is not a situation where the complainants may have honestly but mistakenly believed that [Mr. S.] sexually assaulted them.” Although there may have been reliability concerns relating to issues such as the timing or frequency of the incidents, or whether the touching in the wave pool may have been accidental, none of the complainants could be honest but mistaken about whether the core events they described happened. These events were described as including full intercourse in the case of Ms. S., attempted intercourse in the case of Ms. C., and Mr. S. rubbing his naked penis between Ms. K.’s naked buttocks. As a matter of common sense, in giving this testimony the complainants were either describing events that had occurred, or they were lying. Since lying does not arise from accidental tainting, accidental tainting was highly improbable relating to the core details that the trial judge relied upon. The trial judge was entitled to reason as he did. We therefore dismissed this ground of appeal.

[6] We did consider the remaining grounds of conviction appeal raised in the inmate notice of appeal that were not advanced orally by amicus. They are without merit. We therefore dismissed the conviction appeal.

[7] We granted leave to appeal the sentence but dismissed the sentence appeal because no errors in the sentence have been identified and the eight-year global sentence was fit. Mr. S. sexually abused three highly vulnerable child victims by subjecting them to a range of highly intrusive indignities, breaching their trust, two of them on multiple occasions. Even Mr. S.’ trial counsel sought a sentence almost as long as the sentence imposed – five to seven years. Before imposing the eight-year global sentence, the trial judge carefully assessed the material sentencing principles and was attuned to the principle of totality. He committed no error in doing so.

[8] We have noted Mr. S.’ concerns about the collateral immigration consequences of the sentence imposed, but it is not possible to identify a fit sentence that would ameliorate those concerns, even if we were of a mind to interfere.

[9] The conviction appeal is dismissed. We grant leave to appeal the sentence but dismiss that appeal, as well.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“L. Favreau 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.