R. v. J.D., 2025 ONSC 2873

COURT FILE NO.: Cr-24-0092-AP
DATE: 2025-05-15
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King, Respondent
– and –
J.D., Appellant

Appearances:
Turner Hampel, for the Respondent
Michael W. Lacy and Bryan Badali, for the Appellant

Heard: March 25, 2025

Decision on Summary Conviction Appeal
S.K. Stothart

Introduction

[1] On March 4, 2024, Justice D. Thomas found the appellant guilty of two counts of sexual assault contrary to s. 271 of the Criminal Code of Canada. On May 1, 2024, the appellant was sentenced to 9 months of imprisonment on count two and a 6-month conditional sentence on count one, to be served consecutively to the term of imprisonment.

[2] There is a publication ban in effect; therefore, I will use initials to identify the appellant (J.D.) and the complainant (E.J.) for the purposes of this decision.

[3] J.D. appeals both his convictions and the sentence imposed on count two. The issues on the conviction appeal are: (a) whether the trial judge materially misapprehended the evidence of the appellant; (b) whether the trial judge erred in his application of the principles in R. v. W.(D.); and (c) whether the trial judge committed palpable and overriding error in rejecting the appellant’s testimony.

[4] With respect to the sentence appeal, the issues are whether the trial judge erred in imposing a sentence on count two that was harsh and excessive, overemphasized general deterrence and denunciation, and failed to properly account for the principle of restraint.

[5] For the reasons that follow, I am satisfied that the trial judge misapprehended aspects of the appellant’s evidence and that this misapprehension played a meaningful role in his overall assessment of the appellant’s evidence. Given this error, the appeal should be allowed, and a new trial ordered.

[6] Given that I have ordered a new trial, I need not address the sentence appeal.

Overview

[7] The evidence at trial came from the complainant E.J. and the appellant J.D. The complainant testified that she was sexually assaulted by the appellant on two separate occasions in August and September 2022. The appellant denied the allegations. The credibility and reliability of their evidence were key issues at trial.

[8] The complainant and the appellant had been working with the Ministry of Natural Resources in Chapleau, Ontario for the summer of 2022 and over the course of the summer they became friends.

The August Incident

[9] One evening in August, the appellant invited the complainant over to his trailer for drinks. The two watched a horror movie while lying in the appellant’s bed.

[10] The complainant testified that while they were watching the movie, the appellant kept trying to put his hand down her pants. The complainant told him to stop, and once he stopped listening to her, she told him she wanted to go home. At one point she saw a condom on the side table and told the appellant that “that wasn’t happening”, meaning sex. They did not finish watching the movie and the appellant walked her home.

[11] The appellant testified that the complainant came over to his trailer and they watched a movie while sitting on his bed. Other than their shoulders touching, there was no other physical contact, other than an initial hug. The appellant denied touching the complainant’s lower torso.

[12] The appellant testified that after about an hour, the complainant was ready to go home. When asked whether they had watched the whole movie, the appellant testified that they had not, they were both tired, he had passed out during the movie for a bit, and they both had to work in the morning. The appellant agreed that he walked the complainant home.

The September Incident

[13] On the complainant’s last day of work for the summer, the appellant invited her over to enjoy a bonfire outside another co-worker’s trailer. The three sat and had a few drinks by the fire. The complainant had consumed alcohol before going over. While at the bonfire she smoked some marijuana and consumed further alcohol. She could not say how much she drank while at the bonfire, but when she went to leave, she was intoxicated.

[14] The complainant testified that at one point during the bonfire she and the appellant had “kind of moment” and they kissed. After that, the appellant kept asking her to come back to his trailer with him. She wanted to go home, but “kind of caved” and went back to the appellant’s trailer. The complainant could not remember the walk back to the appellant’s trailer because of her level of intoxication.

[15] The complainant testified that when they got to the trailer, she tripped on the first step and fell into the trailer. After that she couldn’t stand back up, so she crawled over to where the table was. The appellant asked her if she wanted another drink, and she said no. The appellant kept pressuring her to have another drink, and she told him she’d rather just smoke instead to try to sober up a little bit. At that point the appellant reached down, grabbed her wrist, threw her over his shoulder, and threw her on the bed. He took her pants off and performed oral sex on her. The complainant testified that she kept trying to tell the appellant to stop but he wouldn’t.

[16] The appellant asked the complainant if she wanted him to use a condom. The complainant testified that “in her head she was screaming no” but thought if he was going to rape her, he might as well use protection, and probably said yes. After the appellant put on the condom, he began to “rape her”. The complainant testified that she was pushing on the appellant’s chest, trying to tell him to stop, and asking or begging him not do this. The appellant brushed the hair out of her face and told her that he thought she was beautiful.

[17] The complainant testified that she told the appellant that she felt like she was going to throw up. At that point the appellant either jumped off or got off. She ended up falling off the bed or crawling on the bed and then falling on to the floor. She curled up in a ball and hid in between the bed and the wall. The appellant grabbed her wrist and yanked her out of the corner and told her to go to the bathroom. The complainant told him not to touch her and put her pants and shoes on. She told the appellant she just wanted to leave.

[18] The complainant testified that the appellant walked her part of the way home. During the walk the appellant asked if she was okay, asked what was going on, and said he was sorry. The complainant told the appellant that she was fine and could walk the rest of the way. When she got to a point where she was far enough away, she broke down and messaged others. She ended up going to another trailer and staying there for the night. The next day she took a shower with her clothes on because she felt disgusting. She then called her mother who came down and helped her pack and leave.

[19] The appellant testified that the complainant came to the bonfire, and they stayed there for a couple of hours, having a few drinks. At some point, he and the complainant shared “a few kisses”. Eventually they decided to leave and walked back to the appellant’s trailer holding hands. As they walked by the turn-off that led to the complainant’s trailer, the complainant kept walking with him. In his evidence in chief, the appellant could not recall inviting the complainant to his trailer, but later testified in cross-examination that once they passed the turn-off, he was the one who suggested they go to his trailer.

[20] When they got to the trailer, the complainant immediately got on to the bed. They kissed for a bit and things “started to get heated, exciting” so the appellant pointed to a condom which was on the nightstand. In response, the complainant reached over, took the condom, and handed it to the appellant. The complainant either took his belt off and then took her pants off; or took her pants off and then took his belt off. The appellant did not believe he ever asked the complainant whether she wanted to have sex.

[21] The appellant testified that the two engaged in sexual intercourse. Initially they were in the missionary position, however at some point the complainant rolled and got on top of him. The appellant testified that the complainant was moaning during sex, which he interpreted as moans of pleasure. At no point did the complainant tell him to stop or try to push him off. Had she done so, he would have stopped.

[22] The appellant testified that after sexual intercourse was finished, he got dressed and was lying on the bed. The complainant put her pants back on. The appellant told the complainant that he felt bad because he did not normally have sex with someone on a first date. The complainant seemed irritated and replied, “yeah me neither” and then jumped off the bed and headed to the bathroom. Before she reached the bathroom, the complainant fell down. The appellant testified that this was the first time he noticed that the complainant was “very intoxicated”.

[23] The appellant testified that he assisted the complainant to the bathroom. He then walked her home, walking her about three quarters of the way. He asked the complainant if she was okay, and she said she was fine. They hugged and he went back to his trailer.

General Principles of Law

The Standard of Review

[24] There are three possible bases upon which this appeal may be allowed. They are:

(a) The verdict is unreasonable or cannot be supported by the evidence;
(b) There was a wrong decision made on a question of law; and/or
(c) There has been a miscarriage of justice.

[25] While questions of law are generally reviewed on a standard of correctness, the jurisdiction of a summary conviction appeal court to review a trial judge’s findings of fact is very limited. A summary conviction appeal judge is not entitled to retry the case nor is a summary conviction appeal judge entitled to substitute their own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or they are not supported by the evidence: R. v. Smits, 2012 ONCA 524 at para. 67.

[26] Findings of fact are entitled to deference. An appellate court can only interfere with such findings where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence or otherwise unreasonable before an appellate court may interfere: R. v. Clark, 2005 SCC 2 at para. 9; R. v. Sheahan, 2017 ONCA 159 at para. 12.

Findings of Credibility and Reliability

[27] Trial judges are uniquely placed to assess the credibility and reliability of witnesses and their findings at trial attract significant deference on appeal unless a palpable and overriding error can be shown: R. v. G.F., 2021 SCC 20 at para. 99; R. v. Dinardo, 2008 SCC 24 at para. 26; R. v. Gagnon, 2006 SCC 17 at paras. 10-11.

[28] An appellate court must review a trial judge's reasons as a whole and functionally. Absent a palpable and overriding error or an error of law, an appellate court must not interfere with a trial judge's credibility and reliability findings: R. v. G.F., at paras. 69, 76-82; R. v. Dinardo, at para. 26; R. v. Gagnon, at paras. 10-11; R. v. Kruk, 2024 SCC 7 at paras. 82-85; R. v. E.R., 2024 ONCA 747 at para. 4.

[29] The reasons for appellate deference were set out by the Supreme Court in R. v. Kruk, at para. 83:

Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge's factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge. In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that "particular deference" should be accorded to credibility findings. Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole.

[30] Appellate courts must be mindful of the "acute practical difficulties trial judges face in articulating why a particular witness was believed or disbelieved, tasked as they are with interpreting the various impressions and inferences that arise from the evidence": R. v. J.A., 2024 ONCA 271 at para. 25; R. v. Kruk, at para. 84.

Reasons for Decision

[31] An appellate court must review a trial judge's reasons as a whole and functionally. A trial judge’s reasons must be sufficient and fulfil their function of explaining why an accused was convicted or acquitted, providing public accountability, and permitting effective appellate review. In reviewing reasons for decision, an appellate court "must not finely parse the trial judge's reasons in a search for error": R. v. G.F., at paras. 69, 76-82; R. v. Dinardo, at para. 26; R. v. Gagnon, at paras. 10-11; R. v. Kruk, at paras. 82-85; R. v. E.R.; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at 15.

[32] In cases involving conflicting assertions and denials of conduct, a trial judge’s reasons must demonstrate an understanding of the relationship between reasonable doubt and credibility, and that they applied this understanding to their analysis.

[33] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court suggested the following approach where an accused testifies:

First, if you believe the evidence of the accused, obviously you must acquit;
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit;
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[34] Appellate courts have recognized that the W.(D.) test is not a “magic incantation” that must be recited verbatim in every case. On appeal, the reviewing court must examine the trial judge’s reasons as a whole and determine whether they make it clear that the trial judge understood the correct burden and standard of proof: R. v. Dinardo, at para. 23.

[35] The critical question is whether the reasons, viewed as a whole, demonstrate the trial judge’s grasp of the substance of the relationship between reasonable doubt and the assessment of credibility. The essence of the W.(D.) test is that the prosecution carries the burden of proof, which is beyond a reasonable doubt, of each essential element of the offence. W.(D.) recognizes that the prosecution may not meet its burden despite the rejection an accused’s explanation: R. v. Phan, 2013 ONCA 787 at paras. 21-24.

Misapprehension of Evidence

[36] A mere misstatement or inaccuracy in a trial judge’s treatment of evidence does not constitute reversable error. An appellate court will only interfere where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part of the reasoning process, not just of the narrative: R. v. S.R., 2022 ONCA 192 at para. 14; R. v. Cloutier, 2011 ONCA 484 at para. 60.

[37] A misapprehension of evidence renders a trial unfair and results in a miscarriage of justice where the trial judge is “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrisey at para. 93.

[38] Where the alleged misapprehension is respecting evidence used to assess the credibility of an accused or witness, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence plays a role in the trial judge’s credibility assessment. If a trial judge mischaracterizes parts of an accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: R. v. S.R., at para. 15.

Analysis

[39] Assessments of credibility were central to this case. The trial judge was faced with two opposing versions of events. The complainant testified with respect to two incidents where she was sexually assaulted. The appellant denied the first incident of touching occurred and testified that the second incident was consensual or, in the alternative, that he had an honest but mistaken belief in consent.

[40] The trial judge found the appellant not to be credible and rejected his evidence. The trial judge found the complainant to be a credible witness and he accepted her evidence. In the end, on the totality of the evidence that he accepted, the trial judge was satisfied of the appellant’s guilt on both counts, beyond a reasonable doubt.

Whether the Trial Judge Misapprehended the Evidence of the Appellant

[41] The appellant submits that the trial judge misapprehended his evidence at trial and that these misapprehensions were material to the trial judge’s credibility analysis such that they resulted in a miscarriage of justice.

[42] The respondent submits that any misapprehensions of the appellant’s evidence were not material and did not form an essential part in the reasoning process that resulted in a conviction. With respect to some of the alleged misapprehensions, the respondent submits that the trial judge was not making specific findings, rather was drawing analogies to the appellant’s evidence.

[43] The trial judge found that aspects of the appellant’s evidence did not make sense in the overall circumstances. He also found that other aspects of appellant’s evidence were internally inconsistent.

[44] With respect to the August incident, the trial judge found that the appellant’s explanation for why things came to a sudden and abrupt halt halfway through the movie did not make sense.

[45] With respect to the September incident the trial judge set out five non-exhaustive reasons why he rejected the appellant’s evidence. They were: (1) that the appellant had been inconsistent with respect to whether and when he invited the complainant to his trailer; (2) he had been inconsistent with respect to his knowledge of the complainant’s intoxication and his evidence did not make sense on this issue; (3) his evidence that the complainant was irritated after the sexual intercourse made no sense in all the circumstances; (4) he was inconsistent with respect to the order in which clothing was removed; and (5) his evidence about walking the complainant part of the way home made no sense.

The August Incident and the Reason the Complainant Left the Trailer

[46] The appellant testified in chief that at some point the complainant was ready to go home and he asked her if he could walk her home. His evidence on this point was not detailed. The appellant was not cross-examined about how the evening ended. The trial judge asked the appellant if they had finished watching the movie. The appellant answered that they did not. When asked why, the appellant testified “I believe we were both getting tired, like I passed out during the movie for a bit. We both had to work in the morning”.

[47] The trial judge found the appellant’s explanation for the complainant’s “sudden and abrupt departure” from his trailer to be, in the context of all the evidence, incredible and not capable of belief. The trial judge described the appellant’s evidence as “I am sorry I am feeling overwhelmed with fatigue, like I have narcolepsy, I am passing out”. The trial judge found the appellant’s evidence of passing out, in the context of inviting an attractive young co-worker over to watch a movie in his bed and while cuddling with her, simply did not ring true.

[48] The trial judge’s description of the appellant’s evidence as passing out as if he had “narcolepsy” was an overstatement. On the evidence of both the complainant and the appellant, they had started watching the movie later in the evening. The appellant testified that he had passed out during the movie “for a bit”. He did not testify that he was suddenly overcome with fatigue or involuntarily fell asleep. His evidence was that the evening ended because the complainant wanted to leave, they were both feeling tired, and they had to work the next day.

[49] The respondent submits that the trial judge’s reference to “narcolepsy” was not an actual description of the appellant’s evidence, rather it was an analogy. When one reads the trial judge’s comments in their entirety, the trial judge appeared to find that the appellant’s evidence was that he was suddenly passing out and that this is what ended the evening. The trial judge’s use of the term “narcolepsy” which refers to a condition where individuals fall asleep suddenly and for no apparent reason, was an inapt analogy to the appellant’s evidence which was that it was late at night, he had “passed out a bit” during the movie, they were both tired and they both had to work the next day.

[50] The appellant submits that the use of the term “narcolepsy” was used sarcastically by the trial judge. It is very difficult to assess whether a trial judge was being sarcastic on the basis of a written transcript, and I am not in a position to make that conclusion in this case. If the use of the term “narcolepsy” was an analogy for the appellant’s evidence, it was an inaccurate comparison.

The September Incident and Who Suggested Going Back to the Trailer

[51] The trial judge found that the appellant had been inconsistent with respect to whose idea it was to go back to his trailer on the night of the campfire. The trial judge found that the appellant had initially testified in chief that he did not remember inviting the complainant to his trailer and that the complainant simply followed him to the trailer after they got to the fork in the road.

[52] The trial judge then found that the appellant agreed in cross-examination that he had suggested going back to his trailer while he and the complainant were at the bonfire and that the complainant had no part in suggesting it. The trial judge stated:

Firstly, how did Ms. [J] end up in his trailer in the late evening hours of September the 14th after leaving Billy Rain’s bonfire? This is, of course, an important feature or factual determination in the context of the whole of the evidence. When asked this question in examination in-chief by his lawyer, Ms. Belisle, Mr. [D] said “I don’t remember inviting her to my trailer” and went on to provide this rather elaborate explanation that when they left the bonfire holding hands and kissing on the way back to the trailer, they got to this fork in the road that would lead either to her home or to his trailer and she in effect just kind of followed him like a puppy dog. And so therefore it was apparently her idea to accompany him back to his trailer.

In cross-examination however, on one of the few points that he was pressed on, he then admitted that it was his idea after all. That in fact he had suggested it back at the bonfire and that [E] had no part in suggesting it, and I find this to be a fairly significant inconsistency. Initially, in his evidence the court is left with the impression that it was entirely Ms. [J]’s initiative, her idea, when in reality he is the one that had proposed it back at the bonfire.

[53] The appellant’s evidence in chief was that he could not remember if he invited the complainant back to his trailer. When asked how he and E.J. ended up at his trailer, the appellant testified that as they were walking back from the bonfire, they reached the turn off at Cherry Street that went towards the complainant’s house and instead of turning off the complainant kept following him to his trailer.

[54] In cross-examination, the appellant was asked who suggested going to his trailer:

Mr. Hempel: So I do have one other thing I want to ask about, we’re kind of rewinding back to when you are the fire. You said, and I, I wrote here in quotes “I think we agreed to go to my trailer” correct?
Answer: Correct
Question: You’re not sure though, you don’t remember that 100 percent?
Answer: It was a hazy night, but I do remember talking about the trailer
Question: Okay. And again, you, you said you thought this is what happened, I’m going to ask you to the best of your recollection, do you remember who suggested going to your trailer?
Answer: I did
Question: You did? Okay. Did [E] at any point suggest that before then?
Answer: I kind of- because [indiscernible] that she was still walking ‘right beside me instead of going home.
Question: right. But before you said we should go back to my trailer, did she ever suggest that?
Answer: No, [indiscernible).

[55] This area of cross-examination is a bit confusing. Counsel for the appellant submits that the Crown unfairly suggested to the appellant that he had said earlier in his testimony that he thought they agreed to go to the trailer while at the fire. The respondent agrees that the way the question was framed was an inaccurate account of the appellant’s prior evidence, however notes that the appellant agreed to the suggestion and went on to testify that he had a hazy memory of talking about the trailer while at the bonfire.

[56] The trial judge found the appellant’s evidence on this point amounted to a “fairly significant inconsistency”. The Crown’s suggestion to the appellant that he had earlier testified that he thought they had agreed to go to his trailer while at the fire was incorrect. The appellant had not said this. Even if the appellant accepted the incorrect suggestion as being true, the suggestion put to him by the Crown was that he had earlier said “they agreed to go to his trailer” while at the fire, not that he had suggested going back to his trailer while they were at the fire. This was followed by the appellant testifying that his memory of what happened at the fire was hazy, and then agreeing that he had suggested going to the trailer but tied that to a time where the complainant was walking beside him and not going home.

[57] A review of the transcript does not support a finding that the appellant testified that he had suggested going back to his trailer while he and the complainant were at the bonfire. It does support a finding that the appellant initially described the complainant as simply following him back to his trailer, and then later agreeing that he was the one who suggested the complainant come back to his trailer at some point when she was walking beside him instead of walking towards her own trailer.

[58] Having reviewed the transcript, I am satisfied that the trial judge misapprehended the evidence on this point. In terms of the materiality of this misapprehension, the trial judge stated that he found this inconsistency to be “fairly significant”.

The September Incident and the Complainant’s Level of Intoxication

[59] The trial judge found the appellant’s evidence about the complainant’s level of intoxication “made no sense” and defied credulity.

[60] In his evidence in chief, the appellant made no mention of the complainant being intoxicated. In cross-examination, the appellant testified that the complainant walked up the steps to his trailer “perfectly fine”. He testified that after having sexual intercourse, she jumped off the bed and then collapsed right before the bathroom. He helped her up and into the bathroom. He then walked her three quarters of the way home, at which point she said she was fine, they hugged, and he turned back. At no point in chief or cross-examination did the appellant describe the complainant as intoxicated.

[61] It was only when the trial judge asked the appellant about the complainant collapsing on the floor, that he agreed that he noticed, at that point, that the complainant was “very intoxicated”.

[62] Having reviewed the transcript, I am satisfied that the trial judge did not misapprehend this aspect of the appellant’s evidence. It was open to the trial judge to find that it did not make sense that the complainant would go from “perfectly fine” while entering the trailer, to suddenly exhibiting signs of being “very intoxicated” and falling down almost immediately after the alleged sexual assault.

The September Incident and the Order of Events

[63] The trial judge found that there were inconsistencies in the appellant’s evidence with respect to the order of events immediately before sexual intercourse took place. A review of the transcript reveals that the appellant testified in chief that the complainant got the condom, took off her pants, and then helped him take off his pants by assisting in taking his belt off. It then changed to the appellant taking his belt off and the complainant taking her pants off.

[64] I am satisfied that the trial judge did not misapprehend this aspect of the appellant’s evidence. A review of the transcript reveals that it was inconsistent on this issue.

Were the Misapprehensions Material?

[65] A mere misstatement or inaccuracy in a trial judge’s treatment of evidence does not constitute reversable error. An appellate court will only interfere where the misapprehension is of substance rather than detail, is material rather than peripheral to the trial judge’s reasoning, and the error plays an essential part of the reasoning process, not just of the narrative: R. v. S.R., at para. 14; R. v. Cloutier, at para. 60.

[66] A misapprehension of evidence renders a trial unfair and results in a miscarriage of justice where the trial judge is “mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrisey at para. 93.

[67] Where the alleged misapprehension is respecting evidence used to assess the credibility of an accused or witness, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence plays a role in the trial judge’s credibility assessment. If a trial judge mischaracterizes parts of an accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: R. v. S.R., at para. 15; R. v. D.A., 2024 ONCA 39 at para. 32.

[68] In this case, the trial judge’s credibility findings were central to the issues at trial. The trial judge found that the inconsistency with respect to when the appellant suggested that the complainant come back to his trailer was “fairly significant”. It clearly played an important role in the trial judge’s ultimate rejection of the appellant’s evidence. Added to this is the inaccurate analogy used in describing the appellant’s evidence regarding his level of fatigue during the first incident. While there were other inconsistencies in the appellant’s evidence, given the centrality of the two mischaracterizations of the appellant’s evidence to the trial judge’s findings, I am satisfied that a new trial is warranted.

[69] Given my finding with respect to this ground of appeal, I will only briefly address the other grounds.

Whether the Trial Judge Erred in Applying the Steps Set Out in R. v. W.(D.)

[70] The appellant submits that the trial judge committed an error in law in applying the second step of the R. v. W.(D.) analysis. Specifically, that the trial judge failed to consider whether, having rejected the evidence of the accused, the accused’s evidence nevertheless left him in reasonable doubt.

[71] The appellant points to the following as demonstrating an error in the trial judge’s reasoning:

As is frequently the case in criminal trials such as this where credibility is in contest, the court is assisted in its deliberations by resort to the W.(D.) framework which has been with us now for well over three decades. This framework reinforces and encourages trial judges to remember that trials are not credibility contests and to avoid assessing to put the evidence on the basis of which narrative may be preferred, but rather to keep focused on the fact that the burden remains throughout on the prosecution to prove all elements of the offence beyond a reasonable doubt. In short, if I accept Mr. D’s denials of committing any unwanted sexual advances or impropriety’s against Ms. J, It is of course axiomatic that an acquittal must be entered.

Even if I do not believe the defendant’s denials in the context of all the evidence, I must determine whether they might reasonable be true. Have they, in other words, raised a reasonable doubt in the court’s mind. If so, again it is trite to state, I must, of course again acquit as the Crown will not have proven its case beyond a reasonable doubt. [emphasis added]

Additionally, Mr. D has in the alternative advanced a defence of honest, but mistaken belief in Ms. J’s consent, so the court must consider whether there is an air of reality regarding this claim and whether it raises a reasonable doubt in the court’s mind. Even if I do not accept the defendant’s denials and they have not raised a reasonable doubt in the court’s mind and the court finds that there is no air of reality to his claim of honest but mistaken belief, I must still be satisfied on the prosecution evidence that I do accept, that the prosecution has established his guilt beyond a reasonable doubt.

In determining this, I must keep in mind that Mr. D, like every other person charged with a crime, is presumed to be innocent and that remains so unless the Crown has proven his guilty beyond a reasonable doubt. He does not have to prove anything or present any evidence to establish his innocence. Moreover, it is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof beyond a reasonable doubt and that has been reinforced repeatedly in cases like R. v. Lifchus from our Supreme Court.

[72] The appellant submits that the use of the words “I must determine whether they might reasonable be true” in assessing the second stage of the W.(D.) analysis was a legal error.

[73] In R. v. L.G., 2009 ONCA 895 at para. 8, the Ontario Court of Appeal stated:

This court has repeatedly said that a trial judge errs in using the “could reasonably be true” test at the second step in the W.(D.) analysis. That is equally true of its equivalents “might reasonably be true” and “can reasonable be true”: see R. v. G.H.; R. v. Rattray, 2007 ONCA 164.

[74] The Ontario Court of Appeal went on to note that the use of this term, or its close variants, does not always result in a reversal where the reasons for decision otherwise demonstrate that the trial judge understood the proper approach to the burden of proof and proof beyond a reasonable doubt: R. v. L.G. at para. 11.

[75] The appellant submits that the trial judge’s later analysis of the appellant’s evidence with respect to the August incident demonstrates that he applied the “reasonable could be true” standard. In rejecting the appellant’s evidence, the trial judge found his evidence to be incredible and “not capable of belief”.

[76] The respondent submits that a functional approach must be taken to the trial judge’s evidence and that when they are read as a whole, they demonstrate that the trial judge was aware of, and properly applied, the W.(D.) test.

[77] In assessing the August incident, the trial judge stated:

Turning then to the defendant’s evidence, does the court accept Mr. D’s evidence that on the evening of August 1st that he in no way touched Ms. J in a sexual manner by repeatedly trying to place his hands down the front of her pants? Or does it raise a reasonable doubt in the court’s mind?

[78] The respondent further points to the trial judge’s assessment of the September incident, where the trial judge stated:

What about Mr. D’s evidence then regarding the event about a month-and-a-half later? His denial of having forced intercourse on Ms. J and his assertions that Ms. J was the one who consented, indeed was the sexual aggressor indeed to the point of her moaning in delight, or alternatively, his honest but mistaken belief that she was consenting? Did he impress the court as a credible, reliable witness having regard to the entirely of the evidence or did his evidence leave the court in a state of reasonable doubt?

[79] Finally, the respondent points to the trial judge’s ultimate conclusion with respect to the appellant’s evidence:

And so for those reasons I do not and cannot accept Mr. D’s evidence as being true and neither does it raise a reasonable doubt in the court’s mind.

[80] The trial judge’s use of the words “might reasonably be true” was an error and those words should not have been used. However, when viewed functionally and in their entirety, I am satisfied that the trial judge’s reasons demonstrate that he correctly applied the second stage of W.(D.). Immediately after using the impugned words, the trial judge corrected himself by asking himself whether the accused’s evidence raised a reasonable doubt in the court’s mind. He then went on to ask himself this same question as it related to both the August and September incidents, whether the accused’s evidence left the court in a state of reasonable doubt. Finally, in his ultimate conclusion he found that the appellant’s evidence did not raise a reasonable doubt in the court’s mind. Viewed functionally, and in their entirety, the trial judge’s reasons demonstrate that he understood the proper approach to the burden of proof and proof beyond a reasonable doubt.

[81] I am not satisfied that this ground of appeal has been made out.

Did the Trial Judge Commit a Palpable and Overriding Error in Assessing the Appellant’s Evidence?

[82] The appellant submits that the trial judge engaged in improper generalizations that rose to the level of palpable and overriding error. The appellant submits that these errors irreparably tainted his credibility findings, rendering the verdict unsafe.

[83] Given my finding that there was a misapprehension of the appellant’s evidence, I see no need to go on to further assess whether there were also palpable and overriding errors by way of improper generalizations.

[84] As stated in R. v. Kruk, at para. 87, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility is often assessed against a general understanding of how things happen and by applying common sense and generalizations based on an accumulated knowledge about human behaviour. Given that there will be a new trial, assessments of common sense and credibility will be left to the new trial judge.

Conclusion

[85] For these reasons, the appeal is allowed, the conviction is set aside, and a new trial is ordered. The sentence appeal is dismissed.

Judicial Interim Release

[86] The appellant was bound by a judicial interim release order pending this appeal. The parties agree that the order should continue pending trial and that I have the jurisdiction to continue the form of release.

[87] The appellant shall continue to abide by the terms of his judicial interim release as set out in the endorsement of Justice Cullin dated May 1, 2024 until the completion of the new trial.

Released: May 15, 2025

S.K. Stothart