COURT OF APPEAL FOR ONTARIO

DATE: 20260223

DOCKET: COA-24-CR-0766

Trotter, Dawe and Wilson JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Z.P.

Appellant

Colleen McKeown and Samantha Bondoux, for the appellant

Evan Akriotis, for the respondent

Heard: January 28, 2026

On appeal from the convictions entered by Justice James A.S. Wilcox of the Superior Court of Justice, on September 29, 2023.

REASONS FOR DECISION

[ 1 ] The appellant appeals his convictions on two counts of sexually assaulting his niece, A.M. [^2]

[ 2 ] A.M. was the only witness at trial. Her evidence was that in the late summer of 2019, when she was 15 years old, she had issues with her mother and went to stay with her aunt and the appellant. They were both cannabis users, and A.M. frequently smoked cannabis with them.

[ 3 ] During the day and evening of October 30, 2019, A.M. smoked marijuana with her aunt and the appellant. A.M.’s evidence was that when she came out of a deep sleep the next morning, October 31, 2019, the appellant was in her bedroom. He got on the bed, pulled down her shorts, and penetrated her vagina with his penis. This was the basis for the sexual assault charge in Count 1. In her police statement, which was admitted as part of her trial evidence, A.M. explained that she initially thought she might be dreaming, possibly because of the amount of cannabis she had consumed the previous day, and that she only became sure that it was really happening when the appellant grabbed her shoulder and pinned her to the bed. During cross-examination at trial, she testified that she only realized that the events were real when the appellant penetrated her vagina.

[ 4 ] During the rest of the day on October 31, 2019, A.M. and the appellant both acted like nothing had happened. A.M. testified that she again smoked marijuana with the appellant and her aunt, but consumed less than she had the day before, in a quantity that was more typical of her daily cannabis consumption. When she awoke the next morning, November 1, 2019, she again found the appellant in her bedroom, and he again pulled down her shorts and penetrated her vagina with his penis. This second incident was the basis for the sexual assault charge in Count 3.

[ 5 ] The trial judge noted in his reasons for judgment that “the case turns on the reliability, and to a lesser extent, the credibility of the complainant”, and that “[t]he question around the complainant’s reliability turns on the effect of cannabis consumption on her perception and memory of the events.” He concluded that her cannabis consumption did not affect “her ability to perceive or remember that the accused was having sexual relations with her, so as to make her evidence of that unreliable”, and accordingly found the appellant guilty on all counts.

[ 6 ] The appellant advances three grounds of appeal.

[ 7 ] First, he argues that the trial judge materially misapprehended A.M.’s evidence about the effects of cannabis consumption on her perception when he stated that “[s]he denied having any problem with her perception of reality.” According to the appellant, this conclusion was at odds with A.M.’s comment in her police statement that her initial uncertainty on the morning of October 31, 2019 about whether what was happening was real “could’ve been an effect of the marijuana or something.”

[ 8 ] A misapprehension of evidence by a trial judge will only give rise to a successful ground of appeal when it “play[s] an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. In this case, A.M.’s evidence was that during the October 31, 2019 sexual assault she was at first unsure if she was dreaming, but soon realized that what she was experiencing was actually happening. Her evidence that at some point she became aware that the appellant really was sexually assaulting her was unshaken and uncontradicted, and the trial judge was entitled to accept it as he did. This finding made it beside the point whether A.M.’s initial confusion was due in whole or in part to the effects of her cannabis consumption the night before, nor did it matter exactly when she first realized that she was being sexually assaulted. We need not decide whether the trial judge did misapprehend A.M.’s evidence on this issue because, even if he did, any such misapprehension was not material and did not play an essential role in his reasoning process.

[ 9 ] The appellant’s second ground of appeal takes issue with the trial judge’s comment in his reasons that “[f]rom the complainant’s performance as a witness, I cannot perceive any lasting effects on her mental acuity.” The appellant argues that “[t]his analysis was a square peg in a round hole”, because what the trial judge had to decide was whether A.M.’s heavy cannabis consumption had compromised the accuracy of her perceptions at the time of the alleged events in 2019.

[ 10 ] We are not persuaded that the trial judge made any analytical error. He correctly identified the central live issue at trial as “the effect of cannabis consumption on [A.M.’s] perception and memory of the events.” When deciding this issue, the trial judge was entitled to consider A.M.’s performance in court as a relevant factor, even though it was not determinative. If A.M. had displayed any significant perceptual or memory problems while testifying, the trial judge would have been entitled to take this into account when assessing the reliability of her past perceptions and memories. He was equally entitled to consider the absence of any such problems when making this assessment.

[ 11 ] The appellant’s third argument is that the trial judge failed to explicitly refer in his reasons to certain inconsistencies in A.M.’s evidence, some between her police statement and her trial testimony, and others between her evidence-in-chief and her testimony when she was cross-examined.

[ 12 ] Trial judges are not required to expressly address in their reasons every inconsistency or arguable inconsistency in a witness’s evidence. Rather, reasons must be assessed functionally and contextually, having regard to the submissions of trial counsel and “the ‘live’ issues as they emerged during the trial”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-16, 35.

[ 13 ] Some of the alleged inconsistencies the appellant now points to on appeal were not mentioned by his trial counsel during closing submissions. His trial counsel characterized the live issue at trial as the reliability of A.M.’s memories of the October 31 and November 1, 2019 incidents, and raised the issue of credibility largely in relation to her testimony about her cannabis consumption and how it had affected her ability to perceive and recall what had happened to her. In this context, we are not persuaded that the trial judge was obliged to comb through the record to identify and address all the potential inconsistencies in A.M.’s evidence, especially if trial counsel was not referring to or relying on them: R.E.M., at paras. 56-57. The trial judge focused his reasons on the key issue that trial counsel had identified, and concluded that he was satisfied beyond a reasonable doubt that A.M.’s memories of the two sexual assaults were reliable. This is a factual finding that is entitled to appellate deference.

[ 14 ] The appeal is accordingly dismissed.

“Gary Trotter J.A.”

“J. Dawe J.A.”

“D.A. Wilson 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.

[^2]: The appellant was also found guilty of two counts of sexual interference, but these counts were conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.