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SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY WAY. This judgment complies with the publication ban.

Court Information

Court File No.: CR-24-10000076-00AP

Date: September 10, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King – and – A.A., Appellant

Counsel:

Jennifer Laws, for the Crown

Breana Vandebeek, for A.A.

Heard: June 20, 2025

Reasons for Judgment on Summary Conviction Appeal

R. Maxwell J.

Introduction

[1] The Appellant appeals from conviction and sentence for sexual interference made by Justice M. Felix of the Ontario Court of Justice.

[2] At trial, there were three allegations in dispute. The three incidents were captured under a single count of sexual assault and a single count of sexual interference. First, the complainant alleged that the Appellant touched her inappropriately in the kitchen of her home ("the kitchen incident"). Second, the complainant alleged that the Appellant touched her breast ("the breast touching incident"). Finally, the complainant alleged that the Appellant, after picking her up in a car from a hairdressing appointment, rubbed her vagina and upper thigh during the ride home ("the car ride incident").

[3] The Appellant testified at the trial and denied the kitchen incident and the breast touching incident. Regarding the car ride incident, the Appellant testified that he recalled two circumstances of touching in the car, but neither involved sexual touching.

[4] The trial judge found the complainant's testimony on all three allegations to be credible. However, he concluded that the complainant's evidence suffered from reliability issues as it related to the kitchen incident and the breast touching incident. Applying the framework of R. v. W. (D.), [1991] 1 S.C.R. 742, and in particular, the guidance at step three of W. (D.), the trial judge concluded that the Crown had not established the kitchen and breast touching incidents beyond a reasonable doubt.

[5] However, the trial judge found the complainant's evidence about the car ride incident to be both credible and reliable. He did not accept the Appellant's evidence. He found the Appellant guilty of sexual assault and sexual interference on the basis of the car ride incident.

[6] On his appeal from conviction, the Appellant alleges two errors. First, he argues that the trial judge erred by improperly admitting prior consistent statements and using the statements to bolster the complainant's credibility. Second, he argues that the trial judge erred in his W. (D.) analysis, in part, based on his failure to properly apply the rule in Browne v. Dunn.

[7] On his appeal from sentence, the Appellant argues that the trial judge erred on sentencing by relying on non-existing aggravating factors, failing to apply the principles of proportionality and parity, and in his finding that there were no "exceptional circumstances" warranting a conditional sentence order.

[8] For the reasons that follow, the appeal from conviction is dismissed. The application to adduce fresh evidence is dismissed. The appeal from sentence is dismissed.

Legal Principles

[9] On a summary conviction appeal, the standard of review is one of deference. The question is whether, based on the evidence, the decision of the trial judge could have been reasonably reached. An appeal should only be allowed where the decision is not supported by the evidence, is based on a misapprehension of the evidence, is clearly wrong in law, is clearly unreasonable, or there is a miscarriage of justice: R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont. C.A.), at para. 32.

[10] To interfere with a finding of fact, the trial judge must have failed to consider relevant evidence to a material issue, erred in the substance of the evidence, or failed to give proper effect to the evidence: R. v. C.R., [2015] O.J. No. 9-1-1 (Ont. C.A.), at paras. 29-32; R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.), at para. 83.

[11] On credibility and on factual matters, a reviewing court must give due deference to the trial judge who is in the more advantageous position to assess credibility and make findings of fact, having heard and seen the evidence: C.R., at para. 31; R. v. J.H., [2005] O.J. No. 39 (Ont. C.A.), at para. 46; R. v. Cresswell, 2009 ONCA 95, at para. 14.

Grounds of Appeal on Conviction

Did the Trial Judge Err in his Use of the Complainant's Prior Consistent Statements (Text Message Communications)?

[12] A recounting of the factual background is necessary to put the Appellant's complaint in context.

[13] According to the complainant's evidence, while the Appellant drove her home, he touched her upper thigh and the side of her vagina, over her clothing. In his testimony, the Appellant acknowledged that he was in the car with the complainant, but that he only touched the complainant in a non-sexual manner – once on her leg to wake her and ask her if she wanted something to eat and later, when he reached down to pick up her phone which had slipped from her lap to the floor. He denied any sexual touching occurred.

[14] When the Appellant and the complainant arrived at her home, the complainant sent text messages to her friend to get an opinion on what had occurred. The complainant's friend encouraged her to go to the police. In text messages with her friend the day after the incident, the complainant told her friend that her mother had found out about incident when scrolling through her text messages.

[15] The Crown sought to introduce the evidence that the complainant text messaged her friend when she got home from the car ride as part of the "narrative", but not for the truth of what the complainant told her friend. The Defence did not object to the admission of the text messages. The text messages themselves did not disclose the specifics of what the complainant told her friend. The text messages which were introduced at trial began with an incoming message from the friend in which the friend stated, "The best thing I can tell you to do is to stay away from him and tell your mom or big sister."

[16] The Defence position at trial was that the complainant had animus toward the Appellant and that the allegations were fabricated. The trial judge accepted the proposition advanced by the Defence that the fact that the Appellant was in a relationship with the complainant's mother but was not a blood relative to her could provide a source of animus. Further, the complainant acknowledged in her evidence that she did not like it when the Appellant reported her behaviour to her mother and she felt her mother took the Appellant's "side".

[17] The trial judge, at paras. 41-42, accepted the Defence position that he should be cautious with the complainant's evidence given the potential of animus toward the Appellant. The trial judge went on to state, at para. 54, that there was a foundation for a potential motive to fabricate, given his findings as to possible animus. He found that the Crown had not proven an absence of a motive to fabricate.

[18] However, he also observed, at para. 48, that the complainant at times testified in a manner which assisted the Appellant, acknowledging that the Appellant's touch of her breast (on another occasion) could have been an accident.

[19] Against the backdrop of his finding that there was reason to be cautious about the complainant's evidence due to possible issues of animus and a motive to fabricate, the trial judge stated, at para. 56, "I engaged considerations around animus and motive to fabricate as I evaluated the credibility of the complainant. But I also engaged two other areas of the evidence as a counterbalance: the text message communications and the manner in which the allegations were disclosed."

[20] The Appellant argues that the trial judge erred in using the text message communications as a "counterbalance" to the issues of animus and motive to fabricate. He submits that there is no permissible logical inference between the fact that the complainant had text communications with a friend after the car ride and whether she had animus or a motive to lie. He submits that the trial judge, having found potential animus and a motive to lie, used the evidence of the text communications as evidence that she was not lying, or put another way, to bolster her credibility.

[21] I do not agree that the trial judge erred in his use of the prior text communications between the complainant and her friend. The trial judge clearly recognized, at para. 64 of his reasons, that the communications were not admissible for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony. Indeed, he noted, at para. 65, "I have explicitly disregarded the content of the text messages."

[22] Applying the reasoning in R. v. Khan, 2017 ONCA 114, he found that the circumstances surrounding the making of the text communications were such that the communications assisted in assessing the reliability and credibility of the complainant's evidence.

[23] He set out the particular circumstances which he deemed to be relevant to the assessment, at paras. 62-63:

In my view, the text communications are important as they are proximate in time to the car ride incident. The car ride incident occurred on the morning of November 20th, 2022. It is clear on the record at trial that the defendant picked up the complainant shortly after 7:00 AM at the hairdresser's apartment. The complainant testified that she disclosed to her friend on the phone and then they texted each other thereafter. At 7:45 AM the complainant's friend sent a message saying: "The best thing i can tell you to do is to stay away from him and tell your mom or big sister."

On the record at trial, the duration of the call car ride was approximately 20 minutes. So, the complainant was home approximately 7:20 AM to 7:30 AM. I find that the complainant's phone call to the friend must have occurred immediately upon arriving home. By 7:45 AM on November 20th, 2022, the complainant's friend has sent the above noted text message. Further text message exchanges occur thereafter on the subject.

[24] It is within these specific circumstances that the trial judge concluded, at para. 65:

...the fact that the complainant left the car ride and immediately communicated with her friend about sexual touching is a circumstance that I have considered insofar as it serves to rebut the Defence contention that the complainant has fabricated the allegations.

[25] In my view, the trial judge did not err in his application of the principles set out in Khan. The how, when, and why a prior consistent statement is made can be relevant to assessing the credibility of a witness' testimony. The close temporal and contextual connection between the complainant's communications to her friend (which it can be inferred were about the car ride incident), and the car ride incident itself was evidence the trial judge could use in evaluating the Defence assertion that the complainant had made up the allegations. As the Court in Khan held, at para. 34, citing its decision in R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, "...the fact that a statement was made, and the context in which the statement is made, can be probative and help in assessing a witness' credibility."

[26] The Court in Khan went on to note that a recognized permissible use of a prior consistent statement is to show the fact and the timing of the statement, which may assist in assessing the credibility of the evidence: See also R. v. Dinardo, 2008 SCC 24, 2008 1 S.C.R. 788, [2008] S.C.J. No 24, at para. 37. Assessing the credibility of evidence includes evaluating the strength of factors which may undermine the credibility and reliability of evidence, such as a possible motive to fabricate or animus.

[27] For these reasons, I do not accept the Appellant's characterization of how the trial judge used the evidence of the text communications. The Appellant argues, at para. 24 of his factum: "The communications were inadmissible to bolster A.O.'s evidence. The fact that she may have lied to other people, in addition to the police, cannot be used as proof that she was not lying at trial."

[28] The Appellant's statement of the law is correct, but in my view, the trial judge did not use the text communications as proof that the complainant was not lying at trial. Rather, he considered the circumstantial evidence of when and how the allegations were reported as a relevant consideration in evaluating whether, or to what degree, animus or a motive to fabricate impacted the credibility of the complainant's evidence overall: R. v. Bagherzadeh, 2023 ONCA 706, at paras. 27-28; R. v. Langan, 2019 BCCA 467, at para. 99, affirmed 2020 SCC 33.

[29] The first ground of appeal from conviction is dismissed.

Did the Trial Judge Err in his W. (D.) Analysis Including his Ruling on the Browne v. Dunn Issue

[30] The Appellant argues that the trial judge's conclusion that there was insufficient evidence that the Appellant had touched the complainant's breast was based on a lack of reliability, not the credibility of the complainant's evidence. Specifically, he held that while the complainant gave evidence of "a general pattern of sexual touching" by the Appellant, she was unable to articulate any details about the circumstances of the touching or when it happened. The Appellant contends that the trial judge ought to have considered and addressed the credibility concerns arising from the complainant's inability to give details about "a general pattern of sexual touching".

[31] I do not accept this submission. The trial judge addressed the complainant's credibility in several parts of his reasons. He set out the relevant W. (D.) framework at paras. 27-29 and noted, in particular at para. 29, that the analysis requires consideration of "any defence evidence and any admissible exculpatory evidence no matter the source." The trial judge then went on, at paras. 30-36, to set out the relevant legal principles related to assessing the credibility and reliability of witnesses and, at para. 37, the relevant principles related to assessing the credibility and reliability of the evidence of child witnesses.

[32] He then went through a detailed analysis of the complainant's credibility and reliability. Ultimately, while the trial judge was not satisfied beyond a reasonable doubt, by the evidence of the complainant that all the elements of a sexual assault had been made out (the breast-touching incident and the kitchen incident), he found her evidence about the car ride incident to be sufficiently logical, credible, and reliable to establish all the elements of the offence of sexual assault/sexual interference beyond a reasonable doubt. He came to this conclusion after a detailed analysis of the numerous challenges counsel raised about the reliability and credibility of her account about the car ride incident, including numerous alleged inconsistencies in her evidence, the suggestion that she had a motivation to fabricate allegations, and a suggestion that her evidence that she was awake in the car (but had her eyes closed) was not credible. The trial judge addressed each issue and dismissed each challenge to the complainant's credibility and reliability in turn. I see no error in his analysis.

[33] The Appellant further asserts that the trial judge erred in concluding that there had been violations of the rule in Browne v. Dunn. The Appellant argues that he was not required to specifically put a suggestion to the complainant that she had a motive to make up allegations, as it could easily be inferred from her evidence that she had some animus.

[34] The trial judge did not find a violation of the rule in Browne v. Dunn on this point. Rather, he stated, at para. 88, that the rule was not breached by Defence counsel's final submission that the complainant's evidence was a "fabrication", even when this specific suggestion was not put to the complainant.

[35] On two other discrete points, the trial judge found there had been breaches of the rule in Browne v. Dunn. First, he concluded that the complainant was not cross-examined on the anticipated Defence evidence that the only physical contact the Appellant ever had with the complainant over the years involved a "fist pump" and that he was not "touchy" or "physical", when the complainant had testified to a pattern of "awkward" and "weird" touching leading up to more sexualized touching. Second, the complainant was not cross-examined on the anticipated evidence that the Appellant had never been alone with the complainant.

[36] I see no basis to interfere with the trial judge's conclusion that these areas of evidence gave rise to violations of the rule in Browne v. Dunn. A central feature of the complainant's evidence was that there was a pattern of physical touching that was "awkward" and "weird", leading to more sexualized touching. The Appellant's evidence that he had no physical contact with the complainant other than "fist pumps" directly contradicted the complainant's evidence. I would not interfere with the trial judge's conclusion that the failure to put the suggestion to the complainant that there was never any physical contact between she and the Appellant was a breach of the rule in Browne v. Dunn, particularly given the complainant's evidence about a pattern of touching. Moreover, as the trial judge noted, at para. 91, Defence presented the opposite proposition to the complainant in suggesting that she had "misinterpreted" some of the Appellant's physicality.

[37] I would also note that the trial judge took a very measured approach in drawing an adverse inference against the Appellant's credibility as it related to these parts of his evidence, endorsing a "mild credibility challenge". Further, as Crown counsel noted in para. 32 of their factum, the Appellant's evidence that he was never alone with the complainant related mainly to the kitchen incident. Although the trial judge rejected the Appellant's evidence that he was never alone with the complainant in the kitchen, he ultimately concluded that the Crown had not proven the kitchen incident beyond a reasonable doubt.

[38] The violation of the rule in Browne v. Dunn on the Appellant's evidence that he only ever "fist pumped" with the complainant was part of the trial judge's analysis rejecting the Appellant's evidence about what happened in the car ride incident. However, it was only one of a number of factors which led the trial judge to conclude that the Appellant's evidence about what happened in the car was not credible (see paras. 126-134).

[39] For these reasons, I do not accept that the trial judge erred in his application of the principles of W. (D.) or in his finding that the rule in Browne v. Dunn had been violated on certain factual points.

[40] The second ground of appeal from conviction is dismissed.

Appeal on Sentence

Did the Trial Judge Err in Finding that the Appellant was in a Position of Trust over the Complainant?

[41] On sentencing, the trial judge found that the Appellant was in a position of trust over the complainant. The Appellant asserts that the evidence does not establish, beyond a reasonable doubt, the finding by the trial judge that he was in a position of trust over the complainant.

[42] I do not agree. As the trial judge noted, Parliament did not specify what relationships meet the definition of "position of trust" or "position of authority" because the particular circumstances dictate whether the relationship falls on the spectrum of a relationship of trust or authority.

[43] The trial judge recognized that the Appellant was not the complainant's biological father and did not assert power or authority as a father per se. However, he found a number of specific circumstances existed which informed the nature of the relationship and led to a conclusion that the Appellant occupied a position of trust over the complainant. The circumstances included:

1. The Appellant situating himself as a support to the complainant's mother and her family, meeting her through the church, helping her secure a car, paying her to cook for him and referring her to others and ultimately, asking her to be his romantic partner;

2. Shopping for the family, including the children;

3. His presence in the household, mostly on weekends;

4. His reporting the complainant's behaviour to her mother (although not disciplining the complainant himself); and

5. The expectation that he was to be treated politely and with respect.

[44] With these considerations in mind, the trial judge concluded, at para. 33:

On the one hand, I recognize that the defendant was not the biological father of the victim. He did not assert power or authority as her father per se. The defendant was the victim's mother's boyfriend. He was permitted into the family home. He was the victim's mother's romantic partner. He provided emotional, financial and familial support to the victim's mother. He was an adult who enjoyed opportunity and access to the children. In my view, placing this relationship on the spectrum of relationships, I find that it was on the low to intermediate range of the spectrum of trust relationships.

[45] This conclusion was supported by the evidence. The trial judge did not err in his conclusion that the Appellant occupied a position of trust over the complainant.

Did the Trial Judge Err in his Reliance on Section 718.04 of the Criminal Code?

[46] The Appellant argues that the trial judge used the same factors he applied in finding a position of trust to find that the complainant was a "vulnerable person" under s. 718.04 of the Code, namely, that the Appellant was the complainant's mother's domestic partner, he had access to the family and the family home, and he provided support to the family, creating vulnerability. Further, the Appellant argues that the trial judge used the complainant's age to ground a finding that she was a "vulnerable person" then used her age again as an aggravating feature under s. 718.2 of the Code. He argues that the trial judge used the same factors to erroneously aggravate the sentence.

[47] I do not agree. The Appellant's argument misunderstands the purpose of s. 718.04 of the Code. The provisions within ss. 718.01 to 718.04 of the Code identify certain considerations which require a sentencing judge to give paramountcy to the principles of denunciation and deterrence over other sentencing principles. These considerations include, among others, where the person who is abused is under the age of 18 (s. 718.01) and where the offence involves abuse of a person who is "vulnerable because of personal characteristics" (s. 718.04).

[48] As Crown counsel points out in their factum, ss. 718.01 and 718.04 of the Code may apply to the same vulnerabilities because the sections perform the same function – to limit the sentencing judge's discretion to place other sentencing objectives above or equal to denunciation and deterrence in certain circumstances.

[49] Sections 718.01 and 718.04 were both applicable in the circumstances of this case. The complainant was under the age of 18, is a female, and was abused by someone in a position of trust to her. All of these factors make her a "vulnerable person", necessitating that the principles of denunciation and deterrence be given priority over other sentencing principles.

[50] A court's recognition of the applicability of ss. 718.01 and 718.04 of the Code does not preclude the court from considering the same personal circumstances as aggravating factors under s. 718.2 of the Code. The purpose of 718.2 of the Code is different than the purpose of ss. 718.01-718.04 of the Code. Section 718.2 of the Code identifies that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or the offender.

[51] Factors which function to aggravate the circumstances of the offence or the offender under s. 718.2 of the Code may indeed be the same as factors which trigger a requirement to give denunciation and deterrence paramountcy under ss. 718.01-718.04 of the Code. For example, s. 718.2(a)(ii.1) of the Code contemplates, as an aggravating feature, a victim who is under the age of 18 years. Section 718.2(a)(iii) of the Code contemplates, as an aggravating feature, abuse of a position of trust. Those same factors trigger the applicability of s. 718.01 and s. 718.04 of the Code.

[52] As such, while it would have been preferable had the trial judge not cast s. 718.04 of the Code as an "aggravating factor" in his reasons for judgment, he correctly considered relevant aggravating factors under s. 718.2 of the Code, including the age of the complainant and the abuse of trust. He also, at para. 64 of his reasons for judgment, gave paramountcy to denunciation and deterrence in crafting the sentence, as he was required to do under s. 718.01 and s. 718.04 of the Code.

Did the Trial Judge Err in his Application of R. v. Friesen? Did the Trial Judge Err in Failing to Apply the Principles of Parity and Proportionality in Sentencing the Appellant?

[53] The Appellant argues that the trial judge failed to properly apply the overriding principles of proportionality and parity in sentencing the Appellant by misapplying the principles set out by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 concerning the wrongfulness and harmfulness of sexual offences against children and the need for higher sentences for these types of offences.

[54] The Appellant alleges the trial judge erred in making five findings of actual and/or potential harm to the complainant without sufficient evidence to elevate the seriousness of the offence:

1. That there was a pattern of unwanted behaviour;

2. That the Appellant's conduct created a dynamic whereby the complainant could not confide in her mother about the behaviour;

3. That the Appellant's actions harmed the whole family;

4. That the lack of a victim impact statement from the complainant or any member of her family was evidence of harm, dividing the complainant from her family; and

5. That the complainant's words that she hoped the Appellant did not get into too much trouble for his conduct was "the truest form of harm", in that it reflected self-blame.

[55] I do not accept that the trial judge erred either in his findings concerning the actual or potential harm caused in this case or in his application of the principles set out in Friesen.

[56] As the court set out in Friesen, at para. 76, in sentencing offenders for sexual offences against children, the sentencing judge must give effect to the inherent wrongfulness of the actions, the actual harm suffered by the child, and the potential harm which flows from these types of offences.

[57] The trial judge accepted the complainant's evidence that she experienced a pattern of unwanted and inappropriate contact from the Appellant. He also found that the complainant was in a vulnerable position, given her tense relationship with her mother. She felt she could not go to her mother for protection or help. His inference that the Appellant was aware of the dynamic between the complainant and her mother was reasonable, given his relationship with the complainant's mother, his presence in the home, and the fact that he had a role in reporting the complainant's behaviour to her mother. The trial judge did not find that the Appellant caused the negative dynamic between the complainant and her mother, as the Appellant suggests. Rather, he took advantage of the fact that the complainant already had a troubled relationship with her mother, coupled with his position of trust, to commit the offences.

[58] In that sense, as the trial judge noted at para. 59 of his reasons, "the defendant perpetuated harm against the victim and the family as a whole. The dynamic set the victim against her mother. This meant that the victim sought guidance from friends as to how to deal with the circumstances." The Appellant may not have been the sole reason for the dynamic between the complainant and her mother, but it was open to the trial judge to find, in the circumstances, that the Appellant exploited his knowledge of the dynamics between the complainant and her mother and directly or indirectly exacerbated their strained relationship.

[59] These findings, which were open to the trial judge to make, relate directly to the Court's comments in Friesen about harm caused to the child's familial relationship. The Court stated, at para. 60:

Even when parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional (citation omitted) ...Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result.

[60] Further, I do not accept the Appellant's position that, in the absence of a victim impact statement from the complainant and/or family members, it was not open to the trial judge to find that there was actual harm done to the complainant and her family. Courts can infer from the aggravating factors that the acts of a perpetrator of sexual assault involving children gives rise to actual harm: Friesen, at paras. 80-86. The Court in Friesen stated, at para. 86:

Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which to analyze the significance of many particular aggravating factors. Courts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors.

[61] The trial judge related the aggravating features of the case to actual and potential harm done to the complainant. This is the type of analysis contemplated by Friesen in assessing the seriousness of the offence.

[62] Finally, I see no error in the trial judge's interpretation of the complainant's comment that she did not want the Appellant to get into trouble as an indicator of self-blame and a relevant consideration when assessing the wrongfulness of the conduct and the harm caused to the complainant.

[63] In my view, the trial judge's analysis of the actual and potential harm to the complainant and her family, applying the principles set out in Friesen, was fair and reasoned. The trial judge recognized that the Appellant's relationship with the family, his position of trust over the complainant, the complainant's age, and the family dynamics put the complainant in a vulnerable position, informing the seriousness of the offence and what sentence would be proportionate to the seriousness of the offence and the degree of responsibility of the offender. His findings in this regard are owed deference. Further, the trial judge acknowledged the sentencing case law provided on behalf of the Appellant but ultimately concluded that the appropriate sentence was most informed by the principles set out in Friesen and the particular circumstances of the case. In my view, this is precisely what the individualized process of sentencing requires and the trial judge did not err in his analysis.

Did the Trial Judge Err in Refusing to Impose a Conditional Sentence?

[64] The Crown and Defence agreed that a jail term was warranted in the case. The Crown sought a custodial sentence of two years less 1 day followed by three years of probation. The Defence sought a custodial sentence of 12 months, to be served in the community. The Appellant was sentenced to 21 months in custody followed by three years of probation and various ancillary orders.

[65] The trial judge considered but declined to allow the Appellant to serve his sentence as a conditional sentence. He ruled, at paras. 71-72, that a conditional sentence, while available, would not adequately protect the public nor properly address the principles of denunciation and deterrence. He found there were no exceptional circumstances in the case which would render a period of incarceration inappropriate.

[66] The Appellant submits that the trial judge's failure to impose a conditional sentence was based on erroneous findings of aggravating features and his evaluation of the seriousness of the offence. For the reasons I have already set out, I do not accept that the trial judge erred in his assessment of the seriousness of the offence and the presence of aggravating factors, including a breach of trust.

[67] The Appellant also argues that the trial judge erred in concluding that no "exceptional circumstances" existed in the case because he failed to note the absence of aggravating factors which would have elevated the seriousness of the offence, including that the complainant, while a child, was not a very young child, the level of physical interference was low relative to more invasive forms of sexual assault, and the convicted rested on one incident which was brief in duration, as opposed to numerous and/or protracted incidents.

[68] The trial judge recognized that there is no presumption that conditional sentences are inappropriate for specific offences: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. He also recognized that "exceptional circumstances", as explained in R. v. M.M., 2022 ONCA 441 and further defined in R. v. Scott, 2024 ONCA 608, at paras. 180-182, refers to personal circumstances, mitigating factors, and the absence of aggravating factors that are sufficiently compelling to make a conditional sentence proportionate.

[69] In concluding that a conditional sentence, while available, was inappropriate in this case, the trial judge referred to his analysis within the judgment, which included his articulation of the relevant sentencing principles of proportionality, deterrence, denunciation, restraint, and parity as well as the aggravating and mitigating factors. His conclusion that a conditional sentence would fail to properly address the fundamental purposes and principles of sentencing and that, considering the aggravating and mitigating factors, the case did not give rise to "exceptional circumstances" is entitled to deference.

[70] The Appellant also seeks to rely on fresh evidence in the form of his affidavit setting out that, as a result of his conviction and sentence, he was the subject of an admissibility hearing by the Immigration and Refugee Board in July of 2025. The Appellant came to Canada from Nigeria in 2013 and is a permanent resident, but he is not a Canadian citizen.

[71] In his affidavit, the Appellant submits that he was not aware until after his conviction that his immigration status could impact his sentence. The Appellant submits that the immigration-related consequences he faces should be considered in evaluating the fitness of his sentence, including whether a conditional sentence ought to have been imposed.

[72] Fresh evidence may be received on appeal where the court considers it in the interests of justice to do so: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(d).

[73] The admission of fresh evidence is not routine; it is exceptional: R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509, at paras. 89-90, leave to appeal refused, [2020] S.C.C.A. No. 298. The test for admission of fresh evidence is set out in R. v. Palmer, [1980] 1 S.C.R. 759 and further developed in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321:

1. Admissibility – is the evidence admissible under the rules of evidence?

2. Cogency – could the evidence reasonably be expected to have affected the verdict?

3. Due diligence – does the explanation offered for the failure to adduce the evidence at trial affect its admissibility?

[74] The Crown does not contest the admissibility of the proposed fresh evidence under the first criterion. The admissibility of the evidence turns on the cogency and due diligence criteria.

[75] In my view, the Appellant has not satisfied the criteria of due diligence. I would first observe that, contrary to the Appellant's assertion in his affidavit, the trial judge was alerted to his immigration status at the sentencing hearing. The trial judge noted the Appellant's status as a permanent resident of Canada at para. 46 of his reasons for judgment on sentence. He also noted that the Appellant did not make any submissions concerning immigration-related collateral consequences. The Appellant has not advanced a reasonable explanation for why trial counsel did not raise immigration-related collateral consequences. The Appellant's immigration status was known at the time of the sentencing and has not changed. As such, the Appellant has not satisfied the criteria of due diligence.

[76] Leaving the issue of due diligence aside, the fresh evidence is not sufficiently cogent to be admissible. Cogency is determined by three criteria: relevance on a potentially decisive issue, whether the evidence is reasonably capable of belief, and whether the evidence is probative in that it could reasonably be expected to have impacted the result: R. v. Maadani, 2025 ONCA 582, at para. 25; R. v. L.E., 2017 ONCA 961, at paras. 124-127, leave refused 2020 S.C.C.A. No. 4.

[77] I accept that evidence of immigration-related collateral consequences is relevant to the issue of sentencing. I further accept that the proposed evidence that the Appellant has been the subject of an admissibility hearing post-conviction is reasonably capable of belief. I am not however satisfied that the proposed fresh evidence is probative in that it could reasonably be expected, together with the other evidence, to have impacted the result on sentence.

[78] Collateral consequences cannot reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the degree of moral blameworthiness of the offender. As noted in R. v. Suter, 2018 SCC 24, at paras. 49 and 56, if a sentence cannot be reduced to a point that it remains fit and avoids the collateral consequence, the collateral consequence plays little role in the sentencing analysis.

[79] The Appellant did not articulate a basis upon which the fresh evidence would impact the outcome on sentence. First, there is no argument that a sentence of six months or less (which would have allowed the Appellant to avoid an admissibility hearing) would have been a fit sentence. Appellant's counsel did not make this submission at trial, and given the aggravating features in the case and the seriousness of the offence, a sentence of six months or less would have been demonstrably unfit.

[80] The trial judge assessed a fit sentence to be one of 21 months in custody. The trial judge considered the appropriateness of allowing the Appellant to serve his sentence as a conditional sentence and concluded that a conditional sentence would not serve the principles of sentencing, specifically denunciation and deterrence, having regard for the aggravating factors and seriousness of the offence. A sentence of six months or less was not suggested by either party and would have been clearly inappropriate. The additional factor of the Appellant's immigration-related consequences would not have been capable of affecting the sentence that was imposed: R. v. Crespo, 2016 ONCA 454, at paras. 28-29; R. v. Freckleton, [2016] O.J. No. 777, 2016 ONCA 130.

[81] As such, the evidence is not sufficiently cogent to warrant its admissibility.

Conclusion

[82] For all of the reasons set out, the appeal on conviction is dismissed. The application for leave to introduce fresh evidence is dismissed. The appeal on sentence is dismissed.

R. Maxwell J.

Released: September 10, 2025

Footnote

[1] A second conviction for sexual assault was stayed, pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.