Ontario Superior Court of Justice

Court File No.: CR-24-10000012-00AP
Date: 2025-05-15

BETWEEN:
His Majesty the King, Respondent
– and –
Tony Sfeir, Appellant

Jason Balgopal, for the Crown Respondent
Mark Donald, for the Appellant

Heard: March 27, 2025

Reasons for Decision on Summary Conviction Appeal

This decision is subject to a publication ban under s. 486.4 of the Criminal Code.

Wassenaar J.

Overview and Facts

[1] On September 20, 2023, the appellant was convicted of two counts of sexual assault. The counts arose from an incident in June of 2020 involving the complainant JR, and another incident in October of 2020 involving the complainant BG. In both cases, the accused was in his home behind a sheet, and sexual contact occurred through a hole in the sheet. Both complainants thought they were engaging in sexual contact with a woman they had connected with online. The defence position was that during the June incident a woman named Angela was behind the sheet, and that the October incident with BG was consensual. The appellant appeals both sexual assault convictions, alleging errors in the trial judge’s credibility analysis. He also appeals the 28-month sentence imposed. For the reasons provided below, I would reject both the conviction and sentence appeals.

[2] At trial, the appellant testified that in late May or early June of 2020 he met a woman online named Angela. They met for sex at his home twice, in May. They then met in High Park, and the appellant logged into his TextNow app on Angela’s phone. Angela asked if she could rent an empty bedroom in his house to bring people over for sex. The appellant and Angela had a threesome with another male during the last week of May. Angela came to the appellant’s home June 1 to 3. The appellant testified that he was unaware that JR came to his home in June and had sex with Angela. The appellant acknowledged that he owned a black wig that he kept in his utility room. The appellant gave inconsistent evidence about when he saw Angela on June 3. When police came to his apartment on June 6, they asked him if anyone by the name of Angela or Angelina lived there; the appellant said no. The appellant produced text messages between his phone number and the TextNow number he said he let Angela use. The trial judge described the text exchange as “odd”. BG was contacted by the TextNow number on June 6. The appellant acknowledged engaging in a text conversation with BG in early October. The trial judge found that the appellant was using a fake female identity as bait during that conversation. They arranged to meet at the appellant’s home. The appellant acknowledged performing oral sex on BG, but denied using a sheet with a “glory hole”. The appellant testified that he identified himself when BG arrived, and BG was initially confused. The appellant explained to BG that he had been the person texting BG. Ultimately, they agreed that the appellant would perform oral sex on BG, but he would pay BG.

[3] JR testified that he matched with someone on a dating app on June 1, 2020. The person identified as female, sent a picture of a woman that appeared to match the profile picture from the dating app, and referred to “my pussy”. They arranged to meet. When JR arrived, there was a hanging sheet with a hole around crotch height. JR put his penis in the hole, and the person on the other side began fellatio. After a few minutes, the fellatio stopped and then contact resumed. This time it felt like penetration from behind. No condom was used. The person’s hip bone felt bony and JR felt a hand that did not feel like a woman’s hand. JR disengaged and asked to do it without the curtain. He thought the other person was a man. The person began fondling JR’s penis and then resumed fellatio. JR reached around and touched the person’s head. The hair was odd; it felt like a wig. JR withdrew his penis and asked to continue without the curtain. There was a low murmur in response. JR pulled up his pants and left. JR received a message from “Angela” asking him to come back. JR said he would if it was without the curtain. They had a short digital conversation, during which JR called out the situation as he saw it in an effort to “vocalise some of the immense turmoil I was in”. JR left, stopping part way home to process what had happened. He went home and took a long shower. JR contacted police on June 6 and gave a video statement in November of 2020.

[4] BG testified that on June 6, 2020 he engaged in a texting conversation with a person through a dating app. The conversation turned into sexting and images were exchanged. BG received a photo of a naked female. They had a video call and BG viewed what he initially thought was a live video stream of a woman masturbating. A few months later, in October, BG texted that number again hoping for a similar exchange. A conversation ensued. BG had deleted the June text exchange, but the October text exchange was made an exhibit at trial. BG received photos, including a photo of a female with long dark hair and a photo of a female’s naked upper torso. They arranged to meet at the appellant’s home for a glory hole scenario. When BG arrived, he went into the basement, as he had been directed by text. There was a black sheet with a hole hanging in the doorway. The text message had also said that the person was “waiting on my knees for your cock”. BG took off his pants. BG testified that he asked if he could get a condom on, but there was no response. The person performed fellatio through the sheet, and then took BG’s penis and inserted it in their body. BG was still not wearing a condom. BG did not think it felt like a vagina. BG pulled down the sheet. The appellant was cowering on the ground, wearing a black wig. BG pulled up his pants. He was in complete shock and felt very violated and angry. BG and the appellant had an altercation, and then BG left. BG called police later that day. He also went to the hospital, where he received medication for STDs and HIV.

[5] Police executed a search warrant at the appellant’s home on October 5, 2020. They found a black wig in the furnace room.

The Criminal Proceedings

[6] At trial, the defence acknowledged that:

• consent will only be valid where the complainant agrees to sexual activity with knowledge of the specific identity of their partner; and
• the specific sexual activity for which a complainant must give consent under s. 273.1 of the Criminal Code encompasses whether or not a condom is used.

[7] As a result, the defence agreed that if the trial judge accepted the evidence of BG and the appellant’s evidence did not raise a reasonable doubt, then the Crown would have proven the elements of sexual assault on the basis that BG did not provide consent to the oral sex in the circumstances alleged by BG. The defence at trial was that there was a reasonable doubt that Angela was the person behind the sheet at the June incident with JR, and that the October incident with BG was consensual.

[8] On September 20, 2023, Justice Mocha of the Ontario Court of Justice found the appellant guilty on both counts of sexual assault.

[9] On February 16, 2024, Justice Mocha imposed a 14-month sentence on each count, to be served consecutively, for a total sentence of 28 months.

Analysis

The Conviction Appeal

[10] The appellant raised four grounds on his conviction appeal:

• The trial judge erred in her credibility analysis;
• The trial judge erred by applying a stricter standard of scrutiny to the evidence of the defence than to the Crown evidence;
• The trial judge erred by engaging in speculative reasoning and/or misapprehending the evidence; and
• The trial judge erred by reversing the burden of proof in relation to the video streaming evidence.

A. Whether the trial judge erred in her credibility analysis: the second step of W.(D.)

[11] The appellant asserts that the trial judge never explicitly stated that she did not believe the evidence of the appellant. The appellant acknowledges that the trial judge implied she had come to that conclusion, but argues that the second step of the three-step W.(D.) framework for analyzing credibility was not addressed: R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant argues that the trial judge never considered whether the appellant’s evidence raised a reasonable doubt and instead she framed the analysis as a credibility contest.

[12] Near the beginning of her reasons, the trial judge stated:

I intend to review the evidence starting with Mr. Sfeir’s testimony. I am doing this so I can refer to the alternate suspect details provided by Mr. Sfeir as I review the testimony of the complainants. It does not mean that there has been any shift in the onus. The Crown must prove its case beyond a reasonable doubt, including that the evidence of an alternate suspect raises no reasonable doubt. The defendant does not need to prove or disprove anything.

[13] The trial judge reviewed the appellant’s evidence in detail, including his evidence about meeting a woman named Angela online, followed by a review of the evidence of the two complainants. She then analyzed the credibility of the three witnesses, concluding: “I accept the evidence of the two complainants and I do not accept the evidence of Mr. Sfeir.”

[14] Near the end of her reasons, the trial judge stated that she was satisfied beyond a reasonable doubt that the alternate suspect, Angela, was a fictitious person created by the appellant. She went on to consider whether the Crown had proven each of the elements of the offences beyond a reasonable doubt, stating:

If, on the totality of the evidence, I am left with any reasonable doubt about not just who committed the offences but any of the requisite elements, then Mr. Sfeir must be found not guilty. It is not the duty of the defence to raise a doubt. Mr. Sfeir is not guilty unless the Crown can prove otherwise.

[15] The trial judge was satisfied that the Crown had met its onus of proving each of the requisite elements on the two counts of sexual assault.

[16] In R. v. A.J.K., 2022 ONCA 487, para 22, the Court of Appeal for Ontario described the W.(D.) framework as: “simply a methodology that triers use to determine whether the prosecution has met its burden of proving each element of the offence beyond a reasonable doubt”; see also R. v. T.D., 2024 ONCA 860, para 37.

[17] The trial judge clearly and repeatedly referred to the standard of proof beyond a reasonable doubt and the onus on the Crown. She applied those principles in her thorough analysis.

[18] As such, I would reject this ground of appeal.

B. Whether the trial judge erred by applying a stricter standard of scrutiny to the evidence of the defence than to the Crown evidence

[19] The appellant notes the numerous concerns that the trial judge had with the appellant’s evidence and argues that the trial judge did not adequately engage with what the appellant asserts are inconsistencies and other problems with the evidence of JR and BG. As the Court of Appeal for Ontario has observed, uneven scrutiny is a difficult argument to make successfully: R. v. Radcliffe, 2017 ONCA 176, paras 23-26.

[20] With respect, this ground of appeal is a “thinly veneered invitation to re-assess the trial judge’s credibility determinations”: R. v. Radcliffe, at para. 23. As noted above, the trial judge’s reasons contained a thorough analysis that placed the onus on the Crown and applied the standard of proof beyond a reasonable doubt.

[21] In relation to the evidence of JR and BG, I note two additional points. First, the trial judge “was under no obligation to refer to every evidentiary tidbit or to repeat every argument advanced by counsel at trial”: see R. v. Largie, 2010 ONCA 548, para 133. Second, the appellant does not challenge the trial judge’s similar fact ruling. The trial judge found the complainants’ evidence to be strikingly similar, noting that the parties met on the same dating app, the sexual acts occurred in the same location, both incidents involved a glory hole, the person behind the sheet did not speak, both complainants described penetration that they believed to be anal and without a condom, and BG saw the person with a wig and JR thought he felt a wig.

[22] I would reject this ground of appeal.

C. Whether the trial judge erred by engaging in speculative reasoning and/or misapprehending the evidence

[23] The appellant notes two aspects of the trial judge’s credibility analysis and suggests they constitute error. The first concerns the trial judge’s discussion of the appellant’s testimony about Angela’s last name appearing on the TextNow records. The second aspect attempts to undermine a portion of the trial judge’s reasoning by comparing the appellant’s testimony to BG’s testimony on the subject of “taking precautions”.

[24] Appellate courts should not “finely parse the trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, paras 69-82. Moreover, the appellant has not shown that any suggested misapprehension played an essential part in the reasoning process resulting in a conviction: see R. v. Lohrer, 2004 SCC 80, para 6.

[25] In relation to Angela’s last name on the TextNow records, there was an abundance of evidence about “Angela” to support the trial judge’s determination that she was satisfied beyond a reasonable doubt that the alternate suspect was a fictitious person created by the appellant. On the “taking precautions” point, the appellant argues the trial judge erred in her analysis of his testimony that he took “precautions to be safe in his encounters with people”. One cannot question the logic of the trial judge’s conclusion that deceiving a stranger and then revealing the truth to them late at night while alone with the stranger in an apartment is not prudent.

[26] With respect, this ground is another attempt to re-litigate the trial judge’s credibility assessments. Those assessments are entitled to deference.

[27] I would reject this ground of appeal.

D. Whether the trial judge erred by reversing the burden of proof in relation to the video streaming evidence

[28] In her reasons, the trial judge stated: “I find there was insufficient information to establish whether the video was live-streamed as contended by the defence. There is insufficient information to determine one way or the other.” The appellant asserts that the trial judge reversed the burden of proof by excluding the evidence about the video from her assessment of the alternate suspect theory.

[29] BG testified that when he first communicated with the person in June, he thought he watched a livestream of the person, a female, masturbating. He thought it looked real. He questioned whether it had been a livestream after the events in October. The trial judge’s uncertainty about the provenance of the June video did not mean that the elements of the offence that occurred in October could not be proven beyond a reasonable doubt. It was necessary for the trial judge to consider the evidence as a whole in reaching her conclusion. She did so. Importantly, the possible livestream occurred in June. The text messages in October between BG and the appellant were entered into evidence. The appellant’s deception is clear. Indeed, the appellant acknowledged pretending to be Angela in the October text messages, but said that he presented himself when BG arrived at his home.

[30] It is also clear, as noted previously, that the experienced trial judge applied the proper standard of proof and onus to her assessment of the evidence. Near the end of her reasons, she stated explicitly that she was satisfied beyond a reasonable doubt that the alternate suspect was a fictitious person created by the appellant.

[31] I would reject this ground of appeal.

[32] The conviction appeal is dismissed.

The Sentence Appeal

[33] My analysis on the sentence appeal is framed by the standard of review: “except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”: R. v. Lacasse, 2015 SCC 64, para 11; see also paras. 39-44, 51-52.

[34] The appellant appears to suggest that the sentence should be lower because “consent was obtained by fraud” and the appellant was “at the receiving end” of the oral and anal sex. The appellant provides no support for those arguments. In my view, the arguments also reflect a misunderstanding of consent in the context of sexual assault.

[35] Counsel at trial and on appeal have acknowledged a dearth of factually similar sentencing case law. In those circumstances, it is helpful to consider the facts of this case in the context of the law of consent:

• Consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question at the time the sexual activity occurred.”: s. 273.1(1) of the Criminal Code.
• “The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity”: R. v. J.A., 2011 SCC 28, para 66.
• “[T]he only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring” (italics in original): R. v. J.A., para 53.
• Consent must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner: R. v. MacMillan, 2024 ONCA 115, para 50, citing R. v. Barton, 2019 SCC 33, para 88.
• The absence of consent, an element of the actus reus of sexual assault, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, para 26.

[36] These fundamental principles of the law of sexual assault crystallize the gravamen of the offences in this case, for the purposes of sentencing. The appellant engaged in a pre-meditated and rather elaborate ruse in order to deceive the victims for his own sexual pleasure. The appellant used pictures and messages to perpetrate his deception. He engaged in this ruse twice, several months apart. And with a visit from the police in between.

[37] In so doing, the appellant removed the victims’ ability to consent to the acts they engaged in. He deprived them of agency. He violated their sexual integrity. He lured the victims into a vulnerable position and then exploited that vulnerability. As the trial judge stated in her reasons for sentence, “[i]t is the violation of personal integrity and the negating of the victim’s right of self-determination that makes these offences serious”.

[38] The trial judge’s sentencing decision is entitled to deference. I find no basis to interfere with the sentence imposed.

[39] The sentence appeal is also dismissed.

Other

[40] Counsel for the appellant emailed the court on May 13 seeking to apply for bail pending release of this decision. The email was forwarded to me on May 14. Given the above decision, any application would now be moot.

Justice B. Wassenaar
Released: May 15, 2025