RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

Introduction

[1] Pursuant to ss. 813(1)(a)(i) and 813(1)(a)(ii) of the Criminal Code, the appellant:

a. appeals from the summary conviction for sexual assault contrary to section 271 of the Code made against him on April 26, 2022, by the Honourable Justice W. Harris Bentley of the Ontario Court of Justice; or

b. in the alternative, applies for leave to appeal against sentence and, if such leave is granted, appeals against the sentence imposed against him on January 24, 2023, by the Honourable Justice W. Harris Bentley of the Ontario Court of Justice.

[2] The grounds of appeal against conviction identified in the appellant's Notice of Appeal Against Conviction and Sentence, dated January 30, 2023, are that the trial judge is said to have erred in:

a. assessing the appellant's testimonial credibility by incorporating, into her analysis, findings of bad character, (such as a misogynistic attitude), thereby tainting her analysis with impermissible propensity reasoning; and

b. applying uneven levels of scrutiny in assessing the evidence of the complainant and the evidence of the appellant, thereby drawing the reasonableness of the sexual assault guilty verdict into question.

[3] The grounds of appeal against sentence identified in the appellant's Notice of Appeal against Conviction and Sentence, dated January 30, 2023, were that:

a. the imposed custodial sentence of 17 months, being "just one month less than the applicable maximum" custodial sentence available, (because of the Crown's election to proceed summarily in relation to the charge of sexual assault), was said to be excessive, insofar as it was said to have "overlooked" the Crown's own view of the "seriousness" of the case reflected in its election to proceed summarily rather than by indictment;

b. the imposed custodial sentence of 17 months also was said (implicitly) to be excessive having regard to numerous mitigating factors, (e.g., the appellant having no criminal record, while being a supportive father with a positive work history), that "militated in favour of the principle of restraint" in the imposition (or even the avoidance) of a custodial sentence; and

c. the trial judge was said to have erred in finding that the appellant had presented as "victim blaming" during his presentence report interview, and regarding that as an aggravating factor, insofar as the trial judge was said not to have considered, as ameliorating, an explanation provided by the appellant for having used the words he did during the said interview.

[4] The latter ground of appeal against sentence, (i.e., related to suggested "victim blaming" by the appellant during his presentence report interview), nevertheless was not pursued in the appellant's written or oral submissions.

[5] In short, at the time of the appeal's commencement, the appellant was seeking relief that was focused on the conviction appeal being allowed, (with the corresponding conviction being quashed and a new trial being ordered), and failing that, the granting of leave to appeal the imposed sentence and a corresponding reduction in the custodial portion of the sentence to be served; i.e., with no issue being taken in relation to the portions of the imposed sentence relating to ancillary orders or probation.

[6] However, by the time of the appeal being heard before me, the appellant's request for relief had been expanded to include:

a. a request for leave to introduce fresh evidence, (not opposed by the Crown, and granted for reasons orally delivered at the time of the hearing before me), focused on the terms and circumstances of the appellant being released on bail pending determination of his appeal herein, and the impact that was said to have had on various aspects of the appellant's life, including his mental, emotional and physical health; and

b. a further request, (if the appeal against conviction was unsuccessful), for a stay of any sentence imposed on the appellant regardless of the outcome of the appeal against sentence that might otherwise follow, based on considerations analogous to those emphasized by our Court of Appeal in R. v. Downes, [2006] O.J. No. 355 (C.A.), recognizing and giving a degree of credit in relation to sentencing for time spent under stringent bail conditions pending the outcome of this appeal.

[7] For reasons outlined below:

a. the appellant's appeal against conviction is denied; and

b. while the appellant's appeal against sentence imposed by the trial judge otherwise would have been denied, but for consideration of the fresh evidence filed on the appeal concerning events taking place following imposition of sentence, the custodial portion of that sentence, (with all other aspects of the sentence relating to ancillary orders and terms of probation to remain in intact and unaffected), will be varied and reduced from 17 months to seven months, based on considerations analogous to those emphasized in R. v. Downes supra, relating to the terms, circumstances and impact of the appellant's release on bail pending the determination of this appeal, with one of those seven months already having been served and to be deemed as such, such that the appellant shall be reincarcerated to serve the remaining six months of his reduced custodial sentence, with all other aspects of the sentence imposed by the trial judge remaining the same.

[8] Before returning to those reasons, further background, context and procedural history is required.

Further Background, Context and Procedural History

[9] I have reviewed and considered the material provided in relation to this appeal in its entirety and will comment further on particular underlying facts and disputes during the course of my analysis below.

[10] However, by way of initial background and context, I note that events and developments leading to this appeal and decision include the following:

a. It is not disputed that the complainant and the appellant, (Ms D.G. and Mr J.S. respectively), were strangers to each other prior to November 16, 2020. On that date, they made initial contact with each other through an online dating application named "Bumble". After the exchange of some messages, the two made arrangements to meet at a specified fast-food restaurant here in the city of London later that evening, at approximately 11:00pm, following the appellant's completion of a shift working as a security guard.

b. The complainant and appellant thereafter proceeded in their separate vehicles to the agreed location, where they met and agreed to go for a drive in the complainant's vehicle, (i.e., with the complainant driving her vehicle and the appellant travelling therein as a front seat passenger), while the appellant left his vehicle behind at the relevant restaurant.

c. While the complainant and appellant engaged in further conversation, the complainant drove through downtown London and onwards to a park located in Arva, a rural community located just to the north of London, where the vehicle was brought to a stop in a parking area of the relevant park, with few if any other individuals in the vicinity.

d. It was not disputed that various forms of sexual activity then occurred between the complainant and the appellant within the complainant's vehicle; e.g., initial kissing, further kissing, the complainant's manual masturbation of the appellant's penis, the complainant fellating the appellant's penis, the appellant digitally penetrating the complainant's vagina, and the appellant engaging in vaginal intercourse with the complainant without use of a condom prior to ejaculating on the complainant's stomach. However, the extent to which the complainant consented to such sexual activity, and/or the appellant had an honest but mistaken belief in communicated consent by the complainant in that regard, was very much in dispute; i.e., with the complainant denying that she had consented or communicated consent to any sexual activity apart from the initial kissing, and the appellant asserting that all of the sexual activity had been consensual and/or the subject of indications giving rise to an honest but mistaken belief in communicated consent.

e. Following the sexual activity described above, the complainant drove her vehicle, (with the appellant still occupying the vehicle's front passenger seat), back to the fast-food restaurant in London where the two had met and the appellant had left his vehicle; i.e., with the two engaging in some further limited conversation during that return drive. After arrival at the restaurant, the two parted company and drove off in their separate vehicles. At the time, it seems, neither was aware that the appellant inadvertently had left his wallet in the complainant's vehicle; i.e., such that the complainant was possessed of further means by which to identify the appellant.

f. The following day, (i.e., November 17, 2020), the complainant attended an area hospital where she was examined by D.W., a registered nurse with specialized training in sexual assault examinations, (i.e., a certified sexual assault nurse examiner), who completed the forms/paperwork and other components of a sexual assault examination kit, noting and documenting her observations and findings; findings that included the existence of injuries apparently sustained by the complainant, and described in more detail below.

g. The complainant provided a statement to the police that was video-recorded, (but unfortunately not transcribed before trial of this matter), which in turn led to the appellant being arrested and charged with sexual assault contrary to section 271 of the Code on November 19, 2020. After being provided with his rights to counsel, having been cautioned, and having spoken with counsel, the appellant also provided a voluntary statement to the police.

h. On June 18, 2021, the Crown delivered a formal "Notice of Election" indicating its intention to proceed summarily in relation to the charge of sexual assault against the appellant.

i. The matter was called to trial in the Ontario Court of Justice on May 16, 2022, at which time the appellant was arraigned and entered a formal plea of "not guilty" to the charge of sexual assault. Over the course of that day and the following day, (i.e., May 17, 2022), the court received testimony from the Crown's two witnesses, (the complainant and D.W., the aforesaid certified sexual assault nurse examiner), and from the appellant, who elected to testify on his own behalf. I have reviewed and considered the entirety of that testimony, (as well as the material filed as exhibits during that testimony), but will not attempt to summarize that evidence in its entirety here. For present purposes, I will instead refer only to portions of that trial evidence which I consider to be more relevant to the issues raised on appeal.

j. Following presentation of the aforesaid evidence, the matter was adjourned to June 15, 2022, for the receipt of trial submissions from counsel, after which the trial judge reserved her decision.

k. On August 26, 2022, the trial judge delivered extended reasons for judgment, finding the appellant guilty of sexual assault.

l. On November 1, 2022, the matter was back before the court for the receipt of sentencing submissions. In that regard:

i. Formal presentation of material and information for consideration included, (beyond counsel submissions and reference to authorities), a victim impact statement read out by the complainant, a letter of support for the appellant provided by the appellant's partner J.A., and extended direct comments made by the appellant in response to an inquiry in that regard made pursuant to section 726 of the Code; comments that included an apology by the appellant to the complainant and her family, expressions of remorse, and acknowledgment and understanding regarding the severity of a sexual assault and how traumatizing it can be for a victim. Reference also was made during the course of submissions to the content of a presentence report. Although no copy of the report was made an exhibit or otherwise formally entered into evidence, a copy was included with the appeal material submitted for my review.

ii. Crown counsel sought imposition of a custodial sentence of 18 months, (i.e., the maximum permitted, having regard to the Crown's election to proceed summarily), to be served in a custodial institution, to be followed by a three-year period of probation with what were described as "standard" terms, including terms requiring prohibitions on contact or physical proximity with the complainant or her known places of residence, employment and education, as well as compliance with terms requiring the appellant's participation in rehabilitative counselling and treatment for sexual offending. The Crown also sought the imposition of a number of ancillary orders, including the mandatory DNA sampling order required by the provisions of section 487 of the Code, a discretionary weapons prohibition order pursuant to section 110 of the Code, and an order requiring compliance with the provisions of the Sex Offender Information Registration Act (or "SOIRA"), pursuant to the then applicable provisions of sections 490.11 and 490.13 of the Code.

iii. Defence counsel submitted that an appropriate custodial disposition would be a conditional sentence of one year, (i.e., a custodial sentence of 12 months to be served in the community), pursuant to section 742.1 of the Code and the Code's further provisions governing such conditional sentencing. Defence counsel essentially took no issue with the other terms of sentence being sought by the Crown, (i.e., in relation to ancillary orders), apart from inviting the court to consider exercising its discretion in relation to the requested section 110 weapons prohibition order.

m. Imposition of sentence followed on January 24, 2023; i.e., with the trial judge delivering extended reasons in that regard, and imposing a custodial sentence of 17 months, (to be served in an institutional setting), to be followed by an 18-month period of probation governed by terms including, in addition to the mandatory or "statutory" terms required by s.732(2) of the Code, terms requiring the appellant to attend and actively participate in all assessment, counselling or rehabilitative programs directed by his supervisor, (including sexual offending counselling), the completion of such programs to the satisfaction of his supervisor, and the execution of forms authorizing release of information to his supervisor in that regard. Additional terms required the appellant to refrain from communication or association with the complainant, or attendance/proximity within specified distances from the complainant's person or places where she lives, works or goes to school. The sentence imposed also included the DNA sample, section 110 weapons prohibition and SOIRA compliance orders requested by the Crown.

n. The appellant began service of the aforesaid custodial sentence immediately thereafter, (i.e., following imposition of sentence on January 24, 2023), which led in turn to his spending the ensuing month in a custodial institution. However, as noted above, the appellant also promptly took steps to commence this appeal; e.g., by retention of his original appellate counsel, and delivery of his Notice of Appeal Against Conviction and Sentence on or about January 30, 2023.

o. On February 23, 2023, the appellant then was granted bail pending appeal via an order made by Justice Grace. The imposed terms of release in that regard, apart from somewhat standard provisions, (e.g., requiring the appellant to pursue the appeal with all due diligence, keep the peace and be of good behaviour, refrain from the possession of weapons, and refrain from any direct or indirect communication with the complainant or attendance within 200 meters or any known residence, workplace or school attended by the complainant), essentially confined the appellant to strict "house arrest" under a residential surety arrangement supplemented by GPS monitoring and a surety pledge of $10,000 without deposit; i.e., requiring the appellant to reside at and remain at all times within a specified apartment residence shared with his named partner and residential surety, J.A., with the only exception being departures from that specified residence in the immediate company of his surety.

p. As reflected in the court's subsequent endorsements, and as addressed in more detail by the fresh evidence tendered by the appellant, (accepted pursuant to my oral decision noted above and discussed in more detail below), as well as counsel submissions, progress of the appeal thereafter was delayed substantially for numerous reasons. Without limiting the generality of the foregoing:

i. The appellant's original counsel on the appeal, (although not known for such failures, and frankly having a reputation to the contrary in my experience), repeatedly failed to perfect the appeal by indicated completion dates in that regard, required a number of adjournments, and was unable to attend court as required.

ii. It eventually was confirmed that the appellant's original counsel unfortunately was unable to continue for health reasons and an associated prolonged medical leave, necessitating the appellant's retention of his new and current counsel on the appeal. Unfortunately, extant commitments of the appellant's new counsel and time required for her to "get up to speed" in relation to the matter then necessitated further delay.

iii. Although hearing of the appeal before me originally was scheduled to take place on January 7, 2025, it was adjourned on an unopposed basis to allow for the filing of the appellant's application regarding fresh evidence.

iv. As noted above, hearing of the appeal proceeded before me on January 23, 2025, at which time I necessarily reserved my decision. Other pressing demands of my docket, (which has been exceptionally heavy in recent years), delayed finalization and release of my decision on the appeal until today.

q. In the result, the appellant's terms of release pending determination of this appeal have remained in place since February 23, 2023; i.e., for a total period of two years, six months and 23 days between the appellant's release on bail and today's delivery of my decision regarding the appeal.

[11] With that general context in mind, I turn to consideration of the issues raised by the appeal against conviction and the appeal against sentence.

Analysis

[12] As noted above, the appellant's appeal against conviction was based on two suggested grounds:

a. that the trial judge erred in assessing the appellant's testimonial credibility by incorporating findings of bad character, (such as a misogynistic attitude), thereby tainting her analysis with impermissible propensity reasoning; and

b. that the trial judge erred by applying uneven levels of scrutiny in assessing the evidence of the complainant and the evidence of the appellant, thereby drawing the reasonableness of the sexual assault guilty verdict into question.

[13] I am not persuaded that either ground has been substantiated in this particular case, so as to warrant any setting aside of the appellant's conviction for sexual assault pursuant to s.686(1)(a) of the Code.

EVIDENCE REGARDING CHARACTER, PROPENSITY AND DISPOSITION

[14] General principles applicable to character evidence, reasoning based on general propensity or disposition, and restrictions placed on the use of evidence relating to character, propensity and/or disposition, include the following:

a. Evidence of bad character, discreditable disposition or misconduct beyond what is alleged in an indictment, which does no more than blacken the character of an accused, generally is inadmissible. In particular, nobody is charged with having a "general" disposition or propensity to commit an offence, and our law generally prohibits use of such evidence to be used as circumstantial proof of conduct; i.e., prohibiting any inference, based on such evidence, that the accused is a "bad person" with a propensity or disposition to do the type of acts charged, and is therefore guilty of the charged offence. The Crown is not entitled to ease its burden of proof by stigmatizing an accused as a "bad person". The dangers of such impermissible "moral prejudice", use of such a "forbidden chain of reasoning to infer guilt from general disposition, propensity … [or] discreditable tendencies", and improper conviction of persons based on "bad personhood", are reflected in very old rules of common law and have been emphasized repeatedly into modern times by the Supreme Court of Canada. A verdict based on prejudice rather than proof also undermines the presumption of innocence enshrined in ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms.

b. However, when evidence of purported good character is introduced and relied upon by an accused, (e.g., going beyond mere denial of the charged offence and particular charged misconduct to assert expressly or implicitly that he or she would not have done the charged misconduct because he or she is a person of good character who therefore would not do such a thing, with the accused thereby attempting to "show his good character in his own aid"), it is proper and permissible to allow and/or rely upon evidence of the accused's bad character for the limited purpose of addressing and rebutting such evidence. Properly understood, such cases do not reflect any relaxation of the general principles outlined above. In particular, they involve "not a permission to show the defendant's bad character, but a liberty to refute his claim that he has a good one". Otherwise, a defendant "secure from refutation" would have "too clear a license unscrupulously to impose a false character upon the tribunal". While evidence of bad character therefore cannot be used to show that the accused was likely from his character to have committed the offence, evidence of bad character does have a bearing on the general credibility of the accused in cases where the accused brings his or her own general character into question, thereby making evidence of bad character substantially relevant to the issue of credibility. In such cases, a trier may consider and rely upon such evidence as a reason to reject the accused's evidence as unreliable.

[15] In this case, counsel for the appellant argued that the appellant never put his general character in issue at trial; i.e., that he remained focused at all times on "his approach to sexual encounters as applied in this instance", that he "simply said" that "this was my approach to this incident", and that he was "speaking specifically about this incident", "to explain his behaviour in this context", without ever putting "his own moral character in issue", or indicating or suggesting that his general character was such that he would not have committed the alleged sexual assault.

[16] In the circumstances, it was said that there was no basis for the trial judge to use or rely on suggested indications of bad character or propensity on the part of the appellant as a basis for any negative assessment of his credibility, and that the trial judge instead exhibited, as a "thread seen throughout her analysis", and something that "coloured the entirety of her analysis", impermissible moral prejudice and propensity reasoning; e.g., drawing the forbidden inference that the appellant was a person of bad character, (e.g., someone with a misogynistic attitude), who therefore should be regarded as someone less credible, and a "bad person" more likely to have committed the charged offence of sexual assault.

[17] With respect, in my view, counsel for the appellant's assertions that the appellant did not put his general character and propensities in issue are simply inaccurate. For example, and without limiting the generality of the foregoing, I note the following:

a. When asked during examination in chief to describe his demeanor and presentation throughout the initial stages of his physical interaction with the complainant, the appellant chose to respond with an indication that went beyond a focus on the specific incident to emphasize an exculpatory demeanor and presentation he was said to exhibit more generally, on a consistent basis. In particular, he said the following: "My demeanor and presentation is generally always the same. I carry myself in a way that – I try to make people feel at ease, just because I know sometimes my appearance alone can make people uneasy. I've experienced that in the past just in general, in public." [Emphasis added.]

b. When asked during examination-in-chief to elaborate on such comments, the appellant responded with further comments about the exculpatory behaviour he always strives to exhibit in relation to others, without restricting his focus to the behaviour he exhibited on the specific occasion, or specific interactions with the complainant, giving rise to the underlying charge of sexual assault. In particular, he said the following: "I always just try to make people feel at ease. I'm generally a soft-spoken person, not very, like aggressive or – you know, I just – I try to make people feel at ease. So, I just, kind of, let, let, things flow and I don't really, you know, - I just like to make people feel at ease, you know? I, I try to be calm." Such assertions were reiterated during the course of cross-examination, with the appellant stating and emphasizing the following: "At any time, if anyone's ever uncomfortable, not comfortable with anything, you know, I'm, I'm always willing and open to, you know, freedoms. Everybody's rights and freedoms are equal to me. I've never, again, I'll reiterate what I said earlier, I never be (sic) overbearing to somebody, or aggressive, or forceful to somebody." [Emphasis added.]

c. During examination-in-chief, trial counsel for the appellant specifically invited the appellant to comment generally, (i.e., without focusing on the specific underlying incident of interaction with the complainant giving rise to the charge of sexual assault), on how he would try to make someone feel at ease "in a sexual interaction with a stranger". [Emphasis added.] The appellant responded accordingly, indicating the following character traits, qualities and conduct he generally, and indeed always or never, would exhibit or demonstrate in such circumstances: "Patience. Compassion. And you just, kind of, go with the flow, you know. I always make sure that everything is engaged in on both sides. And, yeah, I, I, kind of, go with the flow with everything. I don't really, you know, never really try to force an issue or anything." [Emphasis added.] Such assertions were reiterated by the appellant during the course of cross-examination, when he confirmed his position that he was treating the complainant with compassion and patience because that was who he was as a person; i.e., someone who was "always compassionate".

d. Later, during his examination-in-chief, the appellant was asked whether or not he did or said anything "to display aggression or forcefulness" at the point during his interaction with the complainant when her manual masturbation of his penis transitioned into the complainant engaging in fellatio. The appellant's response quickly transitioned from an answer focused on his conduct at the time to further reliance on his professed general good character and behaviour. In particular, the appellant responded as follows: "No, absolutely not. I mean, not even in, like, my daily life. I never, never wanted to display aggression or – I don't know the other word you used but I – that's just not who I am." [Emphasis added.] The appellant provided a similar response, during cross-examination, to suggestions that he had brought the complainant over to his side of the vehicle by lifting her under her armpits; i.e., with the appellant emphasizing that he "would never put [his] hands on a woman uninvited like that", "in a forceful manner like that", "to grab somebody and pull them across". [Emphasis added.]

e. Still later during his examination-in-chief, when asked to elaborate on an indication that he had permitted the complainant to assume a position of "total control" over initial attempts to handle, manoeuvre and direct his penis into her vagina, the appellant once again asserted that his actions on that particular occasion were a reflection of his past experience and the corresponding general behaviours he now would exhibit on such occasions; i.e., emphasizing that he had "just learned [that] patience, communication and time, you know, are the main factors in that situation", and "I've just learned patience and communication really".

f. As a final example of such references to reliance upon his general good character and behaviour he was said to exhibit, I note that the appellant, when asked during examination-in-chief to explain why he temporarily stopped thrusting his penis into the complainant's vagina when he heard her say "ouch", said this: "I don't want to cause anybody pain, I don't want to hurt anybody. It's – that's who I am."

[18] In my view, such instances clearly demonstrated repeated efforts by the appellant to bolster the credibility of his assertions and denials, (i.e., regarding what did and did not happen during his acknowledged sexual interaction with the complainant, and his alleged misconduct in that regard), by professed express and/or implicit reliance on assertions that sexually assaultive behaviour would not have been consistent with his general good character. In other words, the appellant essentially and repeatedly was testifying, during his examination-in-chief, that he would not have engaged in the charged misconduct because he was a person of general good character in relation to such matters; i.e., a person who always strives to put others at ease, never acts in a manner that is aggressive or hurtful towards others, and always demonstrates, vis-à-vis his sexual partners, respectful patience, compassion and adequate communication to ensure that "both sides" are willingly engaged in sexual activity.

[19] In such circumstances, it was entirely permissible for the trial judge to note and rely on other evidence which, in her view, appeared at odds with such assertions; not for the purpose of finding the appellant guilty because he appeared to demonstrate discreditable character traits and/or behaviours, (i.e., in turn supporting a forbidden inference that he was a "bad person" and therefore more likely to be guilty of the charged sexual assault offence), but because such other evidence essentially rebutted such assertions by the appellant and therefore undermined his credibility.

[20] Without limiting the generality of the foregoing, and simply by way of example:

a. In my view, it was neither surprising nor improper for the trial judge to highlight indications by the appellant that he had asked the complainant to move to his side of the vehicle as a "mutual decision for myself", (emphasis added), construed the complainant's question as to whether the appellant had a condom as an expression of her desire for vaginal sex with or without a condom, construed her indication that she was in pain and did not want him to ejaculate inside of her as an indication that he could still continue with his vaginal intercourse for a further period of time despite her pain, and his continuing to thrust his penis into the complainant's vagina after her indications that it was painful to her, as self-interested and self-serving behaviour. The trial judge was entitled to regard such indications in that light, and as something markedly at odds with the appellant's assertions that his general good character and behaviour were always focused on putting others at ease, ensuring adequate communication to confirm that "both sides" to any sexual encounter were willingly engaged in whatever sexual activity was occurring, and treating his sexual partners with patience and compassion.

b. In my view, it similarly was neither surprising nor improper for the trial judge to highlight the appellant's indications that he absolutely would never kiss any woman after demonstration that she was the "type of person" who would give him a "hand job" and "blow job" on a "first date". The trial judge, (in addition to rejecting the suggestion that such comments reflected any concern about transmission of disease, given the appellant's acknowledged willingness to engage in vaginal intercourse without a condom), was entitled to regard such demeaning comments as indicative of the appellant having a general attitude towards woman that was markedly at odds with the appellant's professed practice of always treating his sexual partners with respect, compassion and concern for equality of engagement; e.g., insofar as the appellant apparently regarded it as fine for him to be on the receiving end of multiple sexual acts while the giver of those services to him was somehow less worthy of a kiss.

c. In other words, the trial judge was entitled to regard such evidence of bad character or discreditable conduct as considerations that undermined the appellant's credibility, (given his general assertions of good character, relied upon by the appellant to reinforce his denial of alleged misconduct), and I am not persuaded that the trial judge employed such evidence for any reason beyond that limited and permissible purpose. In particular, I am not persuaded that she employed such evidence to find the accused guilty based on moral prejudice or impermissible propensity reasoning.

d. In my view, while the reasons for judgment delivered by the trial judge certainly make reference to such matters, and form part of her credibility assessment, it is not accurate to say that they formed an "essential ingredient" of her reasons for disbelieving the appellant at large, and/or why she accepted the complainant's testimony and other Crown evidence as establishing the appellant's guilt of sexual assault beyond a reasonable doubt as far as the alleged vaginal intercourse was concerned. To the contrary, in my view a fair reading of the reasons for judgment indicates that reference to evidence at apparent odds with the appellant's repeated assertion and reliance on his supposed "good character" was but one consideration that went into the overall matrix of credibility assessment, which in turn factored into the determination of guilty or innocence.

SUGGESTED UNEVEN SCRUTINY OF EVIDENCE

[21] As for arguments that the appellant's sexual assault conviction should be set aside based on alleged uneven scrutiny by the trial judge of evidence led by the Crown and evidence led by the defence, general principles applicable to appeals of that nature include the following:

a. Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown is an error of law.

b. However, arguments based on alleged application of such "uneven" or "different" standards of scrutiny of evidence by a trial judge are a notoriously difficult ground of appeal to succeed upon because:

i. credibility findings are the province of the trial judge, and attract significant appellate deference; and

ii. appellate courts justifiably view such arguments with skepticism, seeing them as little more and/or nothing less than a thinly veiled invitation to re-assess the trial judge's credibility determinations, and to retry the case on an arid, printed record.

c. For such an "uneven scrutiny" argument to succeed, it is not enough for an appellant to show:

i. the mere fact that the trial judge accepted the evidence of the complainant and rejected that of the appellant in concluding that guilt had been established beyond a reasonable doubt;

ii. that a different trial judge could have a reached a different credibility assessment;

iii. that the trial judge failed to say something that he or she could have said in assessing the respective credibility of witnesses or gauging the reliability of evidence;

iv. that the trial judge failed to expressly set out legal principles relevant to his or her credibility and reliability assessments; and/or

v. that the trial judge spent more time discussing reasons for believing or disbelieving the evidence of one witness than the time spent doing so in relation to another witness.

d. For such an "uneven scrutiny" argument to succeed, an appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the defence and the evidence of the Crown; something sufficiently significant to displace the deference due to a trial judge's credibility and reliability assessments. Alternative characterizations of what is required, for an "uneven scrutiny" argument to succeed, speak to an appellant's need to demonstrate the trial judge's application of a "double standard", use of "faulty methodology", or use of "two different measuring sticks".

e. Where an appellant succeeds in establishing that the trial judge has applied different standards in assessing evidence of the defence and evidence of the Crown, the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice. In such a case, a new trial is necessary even where the record otherwise may be capable of supporting a conviction, had the evidence been properly assessed.

[22] I am mindful that the most recent majority of the Supreme Court of Canada to address the matter has expressed "serious reservations" about whether "uneven scrutiny" is a helpful analytical tool to demonstrate error in credibility findings, (e.g., insofar as it seems focused on methodology and a questionable presumption that testimony of different witnesses necessarily deserves parallel or symmetrical analysis, instead of a proper focus on whether there is reversible error in a trial judge's credibility findings), while also noting that "uneven scrutiny" arguments easily overlap with other arguments for why a trial judge's credibility findings are problematic, making it unsurprising that "uneven scrutiny" arguments frequently are "tacked on" to arguments such as insufficiency of reasons, misapprehension of evidence, reversal of the burden of proof, palpable and overriding error, or unreasonable verdict.

[23] Similar reservations have been expressed by the appellate courts of other provinces and territories.

[24] For the time being, however, I obviously am bound to follow the general principles outlined above to the extent they have been stated and/or endorsed by the Court of Appeal for Ontario and are not at variance with any non-obiter decisions of the Supreme Court of Canada.

[25] Having done so, in my view the appellant in this case has not cleared the high bar for overturning a conviction on the ground of alleged uneven scrutiny of evidence by the trial judge.

[26] Without limiting the generality of the foregoing, my reasons in that regard include the following:

a. It was suggested on behalf of the appellant that the trial judge displayed uneven scrutiny of the evidence being presented, (and more generally, an approach to the receipt of evidence that was less than even-handed), through the number and nature of judicial interjections and interruptions made during the trial. Having reviewed the transcripts of the trial in their entirety, I am not persuaded that was the case. Without limiting the generality of the foregoing:

i. Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. Indeed, a strong presumption exists that a trial judge has not intervened unduly or improperly at trial.

ii. While a majority of the judicial comments and interjections relied upon by the appellant occurred during presentation of the complainant's testimony, these appeared to be focused primarily on complications arising from the fact that, for some reason, no transcript of the complainant's police interview had been prepared for use at trial, necessitating repetitive and imperfect efforts to locate, isolate and play, (sometimes repeatedly), excerpts from that police statement. In my view, such judicial interjections reflected no effort to assist the complainant or hamper defence counsel's efforts at cross-examination, but demonstration of a trial judge properly attempting to exercise appropriate trial management in an effort to keep the trial moving forward as smoothly and efficiently as possible.

iii. Counsel for the appellant expressed concern that, during a particular judicial interjection following a pause in answering by the complainant, the trial judge interrupted to tell the complainant, (during cross-examination and what was characterized by appellant counsel as an effort by defence counsel "to obtain a clear response"), that she was "answering the question" posed by defence counsel. With respect, in my view the expression of such a concern provides an example of words used by a trial judge being unfairly parsed and taken out of context to suggest the existence of bias and/or other forms of uneven scrutiny in relation to presentation and/or consideration of evidence. In particular:

  1. I think it noteworthy that the trial judge, in separate but similar introductory comments made to the complainant and the appellant after each had been sworn but prior to their giving any substantive testimony, emphasized the importance of each witness fully and properly understanding the nature of any question that was being posed; e.g., such that further steps could be taken if/as necessary to ensure that a question was properly understood and answered appropriately, and that the truth seeking function of the trial would not be compromised. The comments made by the trial judge in that regard to the complainant were slightly longer than those made to the appellant, but in my view that was an understandable reflection of the reality that the appellant had been present during the earlier comments made by the trial judge to the complainant in that regard, with the trial judge expressly cross-referencing those earlier remarks when addressing the appellant about such matters, and expressly repeating to him the importance of his understanding the questions to be asked and letting the trial judge know if that was not the case.

  2. Of similar relevance and importance in that regard are subsequent intermittent indications, during the course of the complainant's ensuing testimony, that she was indeed having difficulty understanding certain questions being posed, (e.g., because of their wording and/or length), with the complainant apparently looking puzzled from time to time, pausing with evident uncertainty and/or in possible need of a break, and/or expressly asking in various ways for clarification as to what was meant by a question and/or if she had addressed or could address the question sufficiently; e.g., insofar as she felt she might not know an appropriate word to use in doing so. That in turn led to the trial judge repeating, albeit with a measure of paraphrasing, comments similar to the introductory remarks she had made to the complainant in that regard immediately after the complainant had been sworn as a witness. For example, during cross-examination, and shortly before the judicial comments identified by appellate counsel as a particular matter of concern, this interaction, (found at pages 43-44 of the transcript of trial proceedings on May 16, 2022), took place between the trial judge and the complainant, following a question posed by defence counsel:

     > THE COURT: Sorry, you're looking puzzled.
     >
     > THE COMPLAINANT: Yeah, I don't understand. I don't know if I'm – I don't know who I'm allowed to ask. I have a question. I'm sorry.
     >
     > THE COURT: Yes. You're in the middle of, of cross-examination now. You can let me know if there's a question that's being asked of you that you don't understand. You've, you've had some questions and you've answered them, so let me know if you don't understand a question.
     >
     > THE COMPLAINANT: It's the wording that, the wording that throws me, like.
     >
     > THE COURT: All right.
     >
     > THE COMPLAINANT: Is that correct, yes? Or no? Then it – I feel like I'm answering – the wording, I'm sorry. I don't…
     >
     > THE COURT: Okay. If you're troubled by the wording then I want you to let me know that, all right?
     >
     > THE COMPLAINANT: Okay.
     >
     > THE COURT: Because you want to make sure that you're conveying what you believe to have happened.
     >
     > THE COMPLAINANT: Okay.
     >
     > THE COURT: All right, so just make sure that you feel comfortable answering the question, and if you're not comfortable with the wording then we'll deal with it.
     >
     > THE COMPLAINANT: Okay.

  3. The comments of the trial judge in respect of which counsel for the appellant took particular issue occurred shortly thereafter, (less than a full page further into the transcript for May 16, 2022), in the following context:

     > DEFENCE COUNSEL: And I take it the kiss was paused with breaks, right? Like, you'd stop kissing?
     >
     > THE COMPLAINANT: I don't know how to answer that question.
     >
     > DEFENCE COUNSEL: Okay. What do you mean by, it was more than one kiss the second time? Could you explain what you meant by that to me, please?
     >
     > THE COMPLAINANT: That it doesn't mean I pulled back and sat firmly in my seat between each kiss.
     >
     > DEFENCE COUNSEL: And let me just repeat that to you, you said, "That doesn't mean you pulled back and sat firm in your seat in between each kiss??"
     >
     > THE COMPLAINANT: I'm sorry, I don't…
     >
     > THE COURT: You're, you're answering the question, so just continue on answering the questions. [Emphasis added.]
     >
     > THE COMPLAINANT: I can't estimate a time between when our lips are a little bit separate or back together. I – it's how two people kiss. I don't know how to explain that.

  4. In my view, a fair reading of the italicized remark by the trial judge, (now being challenged by counsel for the appellant as a suggested indication of bias or uneven scrutiny of evidence), when considered in its full and proper context, makes it clear that the comment reflected no improper attempt by the trial judge to favour or in any way influence or otherwise substantively assist the evidence being presented on behalf of the Crown. As I read the exchange, in context, the trial judge was simply continuing to exercise her proper trial management role of ensuring that witnesses understood questions being asked; in this case, by indicating her view that further clarification was not required because the witness was answering questions in a manner indicating an adequate understanding of what was being asked. The relevant comment by the trial judge in no way directed or influenced the further answer or answers provided by the complainant and, if anything, arguably assisted defence counsel by obviating the need for a further pause, interruption or clarification in questioning at that particular point in the trial. In my view, none of this suggests any judicial bias or uneven scrutiny of evidence favouring the Crown at the expense of the appellant.

iv. Counsel for the appellant suggested that, on another occasion, the trial engaged in "answering on behalf of the applicant", when defence counsel was seeking to clarify if the complainant had verbalized any lack of consent. In that regard, the concern apparently focused on the following comment made by the trial judge: "What she's saying is, that she didn't have an opportunity to, it just happened." In my view, however, this represents another example of the dangers associated with parsing the words of a trial judge and regarding them out of necessary context. In particular:

  1. That judicial comment came towards the end of a series of questions, posed during cross-examination of the complainant, focused on a point during the described sexual interaction between the complainant and the appellant when the complainant was said to have been lifted out of the driver's seat and moved over to the front passenger seat area of the vehicle, (by the appellant lifting the complainant under her armpits), such that she was sitting on top of the appellant with both parties then facing towards the front of the vehicle.

  2. The complainant had been permitted, during her testimony, to demonstrate those movements repeatedly, coupled with further answers indicating that the appellant had been stronger than she was, that she did not want the appellant to move her as he did while that was being done and, (when asked by defence counsel whether she had voiced any hesitation of resistance to being moved by the appellant in that manner), that the answer was "no", as she had "no idea it was going to happen" and was therefore "in shock while it was happening".

  3. It was when defence counsel then asked a further question, essentially repeating his earlier one asking for confirmation that the complainant had not said anything at that point, (to express resistance to being moved), that the trial judge made the commented noted above.

  4. Viewed properly in context, in my view that particular impugned comment of the trial judge was not an instance of the judge improperly "answering on behalf of the complainant", but a proper summarizing of the judge's understanding of evidence already given in that regard by the complainant, (an understanding the complainant confirmed to be correct), coupled with an implicit if not explicit indication by the trial judge to defence counsel that the further question posed by defence counsel already seemed to have been asked and answered.

v. Counsel for the appellant expressed concern about the trial judge "interrupting the cross-examination when the complainant was asked about her body's response to the encounter". Once again, however, I think isolated focus on the existence of such an interruption pays inadequate regard to broader context, which in my view effectively negates any suggested inference that the interruption represented some form of bias or other improper effort on the part of the trial judge to assist the complainant and/or the Crown at the expense of the appellant. In that regard:

  1. Full appreciation of the context for the interruption requires, at a minimum in my view, a review of an extended portion of the trial transcript, (e.g., from pages 90-105 of the transcript prepared in relation to the trial proceedings on May 16, 2022), which includes several segments of the complainant's video-recorded police interview played during cross-examination, accompanied by questions posed by defence counsel focused on complainant references to her body "reacting" to what was happening during sexual activity she described as unwanted, the interruption of the trial judge who asked to discuss matters further with counsel in the absence of the complainant witness, and an extended back and forth discussion between trial judge and defence counsel clarifying the concerns of the trial judge and eliciting counsel input and clarification in that regard.

  2. A review of that extended portion of the transcript makes it clear that the trial judge, (quite properly in my view), was concerned with suggestions apparently being made by defence counsel, during the course of cross-examination, that physiological reactions of a complainant's body to unwanted sexual stimulation, (such as the complainant's vagina possibly self-lubricating in response to digital stimulation by the appellant or the appellant's attempts at vaginal intercourse), could or should be regarded as proof that the complainant actually was consenting to such sexual activity and/or as indications or "cues" in that regard to the appellant, upon which the appellant was entitled to rely in forming an honest but mistaken belief in communicated consent.

  3. In the course of the exchange between the trial judge and defence counsel that followed, in the absence of the complainant, defence counsel at trial eventually agreed that the trial judge had properly intervened to "rightfully caution" defence counsel in that regard.

  4. In my view, such a judicial intervention, to prevent a discredited rape myth from infecting an ongoing trial and distorting its truth seeking function, was an entirely proper exercise of the court's independent duty to engage in such appropriate and proactive interventions where necessary, as emphasized by the Supreme Court of Canada in [R. v. Barton, 2019 SCC 33](https://www.canlii.org/en/ca/scc/doc/2019/2019scc33/2019scc33.html), and cannot be condemned as a suggested example of bias or uneven scrutiny of evidence on the part of a trial judge.

vi. While appellant counsel seemed inclined to focus only on judicial interjections and comments that might be construed as attempts to assist the complainant or hamper defence counsel, in my view a broader review of the entire trial reinforces a perception that the trial judge made consistent efforts to maintain an even-handed approach to the proceeding over which she was presiding. Without limiting the generality of the foregoing:

  1. the trial judge intervened to correct Crown counsel when he inaccurately had misstated the complainant's evidence to suggest it was more inculpatory than it was, by suggesting the complainant had said that the appellant had inserted multiple fingers into the complainant's vagina;

  2. the trial judge interjected during Crown counsel's re-examination of the complainant to prevent the use of leading questions;

  3. the trial judge interjected a number of times during cross-examination of the appellant to point out that Crown counsel was not allowing the appellant to complete his answers to questions, and to ensure that the appellant had that opportunity; and

  4. in my view, such interjections are the hallmarks of a trial judge intent on maintaining an even-hand in relation to the presentation and consideration of evidence, rather than a trier effectively exhibiting bias or similar unfairness directed to one side or the other.

vii. More generally, in my view there was nothing sufficiently inappropriate or disruptive about the impugned comments or interruptions by the trial judge to suggest, in the eyes of a reasonable person watching the trial, any appearance that the accused received an unfair trial; e.g., by the trial judge thereby conveying any impression that she had aligned herself with the case for the Crown, that the trial judge was interfering with the questioning of witnesses in a way that made it impossible for counsel to present the defence case properly, and/or that the trial judge intervened in the testimony to such an extent that it prevented the accused from telling his side of the story.

b. It was suggested that the overall approach and "tone" of the reasons for judgment provided by the trial judge suggested uneven scrutiny of evidence by the trial judge; e.g., insofar as was said to reflect a disproportionately "harsh" or critical approach to the appellant's testimony in comparison to the "much softer and gentler" and/or more forgiving attitude displayed by the trial judge in relation to the complainant's testimony, especially in relation to the treatment of noted consistencies. In that regard, particular reference was made to the trial judge supposedly finding that various considerations definitely had a negative impact on the appellant's credibility, while using language suggesting that the trial judge was merely "troubled" or "concerned" by noted inconsistencies in the complainant's testimony. However, I find such arguments unpersuasive. In particular:

i. Although the trial judge makes no express reference to the Supreme Court of Canada's decision in R. v. W.(D.), supra, the structure of her decision, (i.e., turning first to consideration of the appellant's testimony, and her various reasons for concluding that she did not believe his evidence that the complainant was the "prime mover" of the "vaginal intercourse portion of the sexual activity", or find that evidence gave rise to any reasonable doubt in the mind of the trial judge regarding that "portion of the incident", before going on to look at the "whole of the evidence to determine whether the Crown [had] proven beyond a reasonable doubt that the [alleged] sexual assault took place"), makes clear that the trial judge was following the suggested "steps" to assessment of reasonable doubt suggested by the Supreme Court of Canada in R. v. W.(D.), supra. In such circumstances, it was not surprising that the trial judge turned first to the appellant's testimony, and spent more time analysing that defence evidence; i.e., to demonstrate that sufficient attention had been paid to what has been described as the "second step" of R. v. W.(D.), supra.

ii. Issue was taken with the particular wording employed by the trial judge when identifying and discussing specific issues she considered noteworthy in relation to the testimony of the appellant and the testimony of the complainant. For example, it was suggested that the trial judge simply made outright findings that the appellant's credibility was rejected or negatively impacted by such identified issues, whereas the language used in addressing such identified issues in relation to the complainant's testimony was more qualified or measured; e.g., to suggest that the trial judge was making definite negative credibility findings in relation to the appellant while merely being "concerned" or "troubled" by such issues in relation to the complainant. I am not persuaded by such arguments. Without limiting the generality of the foregoing:

  1. A review of the language actually used by the trial judge indicates that, at times, she actually employed exactly the same wording to describe such issues in relation to the appellant and the complainant; i.e., "I have concerns about the evidence of Mr S.", and "I also have concerns with Ms G.'s evidence".

  2. At other times, the trial judge used, in relation to such matters, slightly different wording having essentially the same meaning; e.g., indicating that she had "difficulties" with aspects of the appellant's evidence, while she found aspects of the complainant's evidence "troubling". In my view, nothing of significance turns on the particular use of alternating synonymous nouns or adjectives employed by the judge in such instances. A fair reading of her reasons for judgment makes clear the underlying reality that she was identifying particular credibility issues in relation to the testimony of both the appellant and the complainant; i.e., scrutinizing the testimony of both for implausibilities, inconsistencies and similar considerations that potentially undermine credibility and/or reliability.

  3. In my view, arguments focused on particular nouns, adjectives and other wording chosen by the trial judge to identify such issues for consideration reflects precisely the sort of inappropriate text scrutiny, "parsing" of "imperfect" or "summary" expressions on the part of a trial judge attempting to verbalize reasons for judgment, and unrealistic expectations of scientific and symmetric precision of language in that regard, that has been lamented by our appellate courts. The relevant question is not the specific language used by the trial judge may have used, but whether the trial judge actually applied different standards of scrutiny in assessing evidence of the defence and evidence of the Crown.

c. In my view, this clearly was not a case wherein the trial judge adopted a lenient, uncritical or readily accepting approach to the testimony of a complainant while demonstrating any overly harsh, unreasoned or unreasonable rejection of an accused's testimony, or otherwise applied scrutiny to the Crown and defence evidence in a demonstrably uneven manner. For example, and without limiting the generality of the foregoing:

i. In relation to their respective professed denials of having no sexual expectations of the relevant meeting, the trial judge disbelieved the testimony of both parties through application of precisely the same reasoning; i.e., the reality that each acknowledged the initiation of sexual activity, (through initial consensual kissing), almost immediately after their arrival at the park.

ii. Issue was taken with the manner in which the trial judge found and emphasized an inconsistency by way of omission in relation to the appellant; e.g., insofar as he claimed at trial that the complainant had referred to having a blanket in the trunk of her car such that she was "prepared" for such situations/encounters, but had mentioned nothing about that in his earlier statement to the police. However, the trial judge employed exactly the same form of analysis to find and emphasize similar inconsistencies by way of omission in relation to the complainant; e.g., insofar as the complainant claimed at trial that the appellant had grabbed her head and pulled her over for a second kiss but had mentioned nothing about that in her earlier statement to the police, and asserted at trial that the appellant had "pulled her over" the center console of the vehicle to its passenger side where he was sitting but had mentioned nothing about that in her statement to the police. Having said that, the trial judge also noted that the complainant apparently agreed with defence counsel's suggestion that the second kissing session actually may have been consensual, once the complainant had listened more carefully to questions in that regard and her memory had been refreshed by listening to relevant portions of her earlier video recorded statement to the police about such matters.

iii. Indeed, in careful analysis of the complainant's testimony, the trial judge identified and addressed these and numerous other specific and reasoned concerns about certain aspects of the complainant's testimony. For example, in addition to finding that the complainant was not being entirely forthright about not contemplating a sexual encounter on the evening in question, (i.e., anticipating that, at the very least, kissing would occur), that the complainant had not been consistent in relation to her accounts of how the "second" kissing session had occurred, (i.e., testifying at trial that the accused had grabbed her head and pulled it towards him for that second kissing, whereas nothing about such grabbing or pulling had been mentioned in the complainant's statement to the police), and that the complainant had not mentioned anything in her statement to the police about the appellant pulling her over the centre console of the vehicle, (although that was not regarded by the trial judge as a significant inconsistency because of ambiguities in what the complainant did say, and the lack of further context), the trial judge also noted the following:

  1. At trial, the complainant testified that the appellant had lowered his pants to expose his penis after the "second" session of kissing, whereas the complainant had indicated in her statement to the police that she had pulled down the appellant's pants. The discrepancy was all the more notable insofar as the complainant seemed determined not to acknowledge what she had said to the police in that regard, even though the relevant portion of the video-recorded interview was played in court a number of times and, according to the findings of the trial judge, confirmed that the complainant had told police that she was the one who had pulled the appellant's pants down.

  2. At trial, the complainant denied that she had consented, after initial kissing, to the subsequent described sexual interactions with the appellant up to and including her manual masturbation of the appellant. However, the trial judge found that denial by the complainant concerning, insofar as the complainant's video-recorded statement to the police had included statements indicating that she was "fine with making out", and further stating: "whatever right, okay, hand job, okay, great". The trial judge noted that the complainant, later in the video-recorded police statement, had offered an explanation indicating that, at the time of the incident, she was thinking that kissing, "a hand job" and giving the appellant "oral" would "be enough", but that she was not thinking any of that was "great" in the moment, despite her earlier comments during the police interview suggesting otherwise. However, the trial judge found that explanation "difficult to square" with the complainant's earlier video-recorded comments.

  3. There was an apparent discrepancy between the complainant's testimony at trial and her earlier video-recorded statement to the police regarding the timing of when her body may or may not have been reacting to sexual stimulation by the appellant, and what the appellant may or may not have done to lubricate her to assist with vaginal intercourse; i.e., with the complainant indicating at trial that the bodily reactions she was describing were in reference to the appellant's digital stimulation of her vagina earlier in the encounter, whereas the context of her earlier statements to the police in that regard appeared to indicate that she had been describing bodily reactions at the time of the attempted vaginal intercourse.

  4. At trial and during her earlier statement to the police, the complainant indicated that the appellant had attempted to lubricate her vagina to assist with vaginal intercourse by digital stimulation, but added an indication at trial that the appellant's efforts in that regard had included use of licking his fingers whereas no licking of the appellant's fingers was mentioned in the complainant's earlier statement to the police. However, the trial judge did not find that to be a significant discrepancy; i.e., insofar as the complainant was consistent in her general assertion that the appellant attempted to use digital stimulation to facilitate vaginal intercourse, and the "only missing piece" of the complainant's earlier indications to the police in that regard had been any mention of the appellant licking his fingers.

  5. The trial judge regarded the complainant's acknowledged apology during the drive back to the appellant's vehicle, (i.e., "I'm sorry that's not what you expected"), to be "an unusual thing" for a complainant to do in the wake of an alleged sexual assault, especially one resulting in physical injuries. However, the trial judge noted that, following the complainant's denial that she had been apologizing because the appellant could not have full vaginal intercourse, questioning at trial thereafter "went in another direction", resulting in a significant lack of context to explain the significance of the apology or lack thereof one way or the other; e.g., insofar as there was no clarification of why the complainant was apologizing, (i.e., what the complainant was apologizing for), and the awkwardness of the sexual activity both parties had described would have made the ride back to the appellant's vehicle "uncomfortable for both" in any event.

iv. The trial judge indicated that, collectively, such identified concerns about the complainant's testimony were sufficient to give her reasonable doubt about the complainant's account of alleged aspects of sexual activity and corresponding sexual assault that were said to have occurred prior to the complainant's relocation to the appellant's side of the vehicle and the described vaginal intercourse occurring thereafter; i.e., with the trial judge expressly indicating that she did not regard such testimony from the complainant as "strong enough for [her] to rely upon for the purpose of convicting Mr. S. of the sexual assault with respect to any activity before [the complainant's] movement to the other side of the car". However, in the course of her reasons, the trial judge also provided additional reasons why she nevertheless accepted the testimony of the complainant in relation to the alleged non-consensual vaginal intercourse that happened thereafter, including the complainant's lack of subjective consent to the attempted vaginal intercourse and vaginal intercourse that took place, and the complainant clearly and repeatedly telling the appellant, in various ways, to stop what he was doing in that regard. Without limiting the generality of the foregoing:

  1. The remarks of the trial judge in that regard included the following: "Otherwise, [i.e., apart from the complainant's testimony with respect to sexual activity before her movement to the other side of the vehicle, in respect of which the trial judge noted concerns such as those discussed above], her testimony is clear, consistent and rich with detail. She did not want to have sexual intercourse. She had asked about a condom. She told Mr S. that she did not want him to put his penis inside her. She told him that it hurt. Her injuries, being the redness, swelling, and shearing of skin on her bilateral labia minora on both sides, and the bruising of her anus, are consistent with the repeated attempts to penetrate her. She cried while he thrust inside her. Ms G.'s evidence was clear and did not waiver regarding her description of what took place, the discomfort she experienced, and that she repeatedly told him it would not work, and that it was painful. I accept her evidence on the attempted, and actual, vaginal intercourse with the exception of the portion about [the appellant] licking his fingers to lubricate her."

  2. As noted above, the trial judge provided indications and explanations as to whey she did not regard certain identified inconsistencies and other aspects of the testimony of the complainant, (e.g., the initial indications of the second kissing session being non-consensual, failure to mention being lifted over the centre console during her statement to the police, the appellant's alleged use of licking his fingers to facilitate lubrication of the complainant's vagina in connection with vaginal intercourse, and/or the apology made by the complainant on the way back to the appellant's vehicle), to be significant.

v. Issue was taken with the alleged failure of the trial judge to extend her noted concern about aspects of the complainant's testimony, relating to sexual activity prior to the described vaginal intercourse, to the complainant's account of alleged sexual assault in relation to the described incident of forced vaginal intercourse without use of a condom despite the complainant repeatedly indicating that she did not want that to happen. In essence, it was argued by counsel for the appellant that, as the trial judge felt the complainant's testimony was not strong enough to warrant a sexual assault conviction in relation to the other described aspects of initial sexual activity, the trial judge erred by not taking the same approach in relation to the complainant's testimony regarding the vaginal intercourse as well. In particular, it was said that the trial judge "ought to have factored these issues with the complainant's evidence into her overall credibility analysis of the complainant but failed to do so". However:

  1. As we routinely emphasize to our criminal juries, a trier is entitled to accept all, some or none of the testimony of any particular witness. The mere fact that the trier in this case chose to reject certain aspects of the complainant's testimony, or felt unable to accept that testimony as proof beyond a reasonable doubt in relation to certain aspects of the alleged sexual assault, is not in itself proof that the trial judge erred, or applied any uneven scrutiny to evidence presented by the Crown and evidence presented by the defence.

  2. As noted above, the trial judge also provided reasons why she felt unable to accept certain portions of the complainant's testimony but felt able to accept other aspects of that testimony.

vi. It was argued that the trial judge's characterization of the complainant's testimony regarding the described vaginal intercourse, (i.e., as "clear, consistent and rich with detail"), could just as easily have been applied to the appellant's testimony, thereby demonstrating uneven scrutiny of evidence sufficient to warrant appellate information. However:

  1. As noted earlier, the mere fact that a trial judge accepts the evidence of a complainant and rejects that of an accused in concluding that guilt has been established beyond a reasonable doubt is not enough for such an "uneven scrutiny" argument to succeed. Nor would the failure of the trial judge to say something she could have said, in assessing the respective credibility of witnesses or gauging the reliability of evidence, to explain precisely why she chose to prefer and/or accept the testimony of one witness rather than another.

  2. In this case, any sweeping and inherently subjective assertion that the accused's evidence in relation to the acknowledged incident of vaginal intercourse was either flawless or just as acceptable as that of the complainant also ignores numerous concerns the trial judge specifically identified in relation to the appellant's testimony. For example:

     a. As noted above, the trial judge was entitled in the circumstances to consider and find, and essentially did find, that the credibility of the appellant in relation to his account of the relevant vaginal intercourse and events surrounding it was undermined by evidence that his conduct on the occasion in question, (e.g., admittedly engaging in continued thrusting of his penis into the complainant's vagina after admitted indications that his doing so was causing the complainant pain), was not consistent with his professed and relied-upon general good character as a person who was patient, compassionate, and unwilling to cause anyone pain.

     b. The trial judge found the appellant to be "somewhat argumentative with counsel during cross-examination to no particular purpose", as well as "evasive", in his testimony about matters concerning the acknowledged incident of vaginal intercourse and how that came to take place. In that regard:

        i. In relation to characterization of the appellant as "somewhat argumentative", the trial judge noted that the appellant disputed use of the word "struggle" to describe the complainant's supposed attempts to insert the appellant's penis into her vagina for 10-15 minutes, and disagreed with characterization of the described situation as "awkward".

        ii. In relation to characterization of the appellant as "evasive", the trial judge noted the apparent refusal and/or reluctance of the appellant to acknowledge that his suggested changing of positions during the attempts at vaginal intercourse to facilitate insertion of his penis into the complainant's vagina represented the taking of a step to move the matter forwards to vaginal intercourse and the appellant therefore having sex; i.e., with the appellant instead characterizing it as a "mutual" decision before adding/acknowledging that it was also a decision "for myself".

        iii. Counsel for the appellant argued that these characterizations of the appellant as argumentative and evasive by the trial judge were unfair and inappropriate, and a further demonstration of "uneven scrutiny" of the evidence being presented; i.e., as the appellant instead should have been regarded as simply trying to present, (as he was entitled to do), a completely accurate description of the events that occurred.

        iv. In my view, such submissions nevertheless represent an example of what appellate courts have described, (as noted above), "a thinly veiled invitation to re-assess the trial judge's credibility determinations, and to retry the case on an arid, printed record". Without limiting the generality of the foregoing:

           1. In my view, characterization of the appellant's testimony in relation to such matters as "argumentative" and "evasive" is literally accurate, having regard only to the transcribed questions and answers in question. In particular, the appellant clearly argued about, (in the sense of taking issue with), with Crown counsel's use of the words "struggle" and "awkward" to describe a situation wherein the complainant supposedly had tried unsuccessfully for 10-15 minutes to insert the appellant's penis into her vagina, and the appellant clearly avoided providing a direct answer to Crown counsel's question asking whether the appellant's suggestion of changing positions to facilitate entry of the appellant's penis into the complainant's vagina was a step taken to move the matter forward to the appellant having sex with the complainant. In short, even if one focuses only on the written words of the relevant exchanges at trial, the trial judge's findings that the appellant literally was being argumentative and/or evasive were open to her based on the presented evidence.

           2. More broadly, however, I agree with respondent counsel's submissions that one cannot and should not assume that broader characterization of a witness as "argumentative" and "evasive" depends solely on spoken and transcribed wording, or that an appellate court is in anything but an inferior position to that of a trial judge when it comes to making such assessments. In my view, such impressions and findings invariably go beyond the spoken word to involve consideration and assessment of the demeanour and tone a witness displays during his or her testimony, and during more contentious aspects of cross-examination in particular. In that regard, I think it worth noting again comments of our Court of Appeal emphasizing the advantage trial judges enjoy in relation to such matters, and why an appellate court should be loathe to second-guess and/or interfere with such assessments made at first instance: "The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses".

     c. As noted by the trial judge, the appellant's testimony at trial was inconsistent when it came to his stated interpretation of the complainant asking him if he had a condom; i.e., indicating at one point that he understood the complainant to be indicating that she wanted to have sex with the appellant if he had a condom, but indicating later in cross-examination that he understood the question to mean that the complainant simply wanted to have sex with the appellant; i.e., that there would be a sexual encounter whether or not a condom was used. As also noted by the trial judge, such an indicated understanding also was at odds with the appellant's earlier statement to the police, indicating that his response to the complainant's question, (i.e., that he did not have a condom), was why the complainant decided to give him a "blow job" in lieu of having sex; i.e., an understanding that the complainant did not want to have vaginal sex without a condom. As emphasized by the trial judge, in her view those were important inconsistencies in the appellant's account of the incident, in relation to the vaginal intercourse that took place, which negatively affected his credibility.

     d. The trial judge found certain aspects of the appellant's account of events surrounding the vaginal intercourse to be inherently implausible. In particular, she did not believe the appellant's testimony that he invited the complainant to join him on his side of the vehicle not to have intercourse but "just to be close", and to "just touch" as "part of a love language". In that regard, the trial judge found such an assertion unbelievable in the context of everything that had occurred up to that point even on the basis of the appellant's testimony; i.e., with the parties having kissed twice, the complainant having manually stimulated the appellant, the complainant having just finished giving the appellant oral sex while the appellant was digitally penetrating her, and both parties still having their pants down and genitals exposed. Such an adverse credibility finding was clearly open to the trial judge based on the appellant's own evidence and account of the event.

     e. The trial judge noted that, although the appellant testified at trial to use of his hand to bring himself to ejaculation on the complainant's stomach after withdrawing his penis from the complainant's vagina, there had been no mention of that in his earlier police statement. Having said that, the trial judge also noted that she did "not make much" of that particular inconsistency by way of omission, emphasizing that it paled in significance to the more important consideration of the appellant admittedly construing, (in a manner the trial judge considered self-serving and at odds with his professed general good character of being a patient and compassionate person), the complainant's indication of experiencing pain via the vaginal intercourse, and her request that the appellant not ejaculate inside her, as an indication that he could continue with that sexual activity despite the complainant's pain.

3. In my view, it also needs to be emphasized that the trial judge expressly provided numerous additional reasons for finding that guilt of sexual assault in relation to the described incident of vaginal intercourse had been proved beyond a reasonable doubt, with a number of those reasons being grounded in evidence provided by the appellant himself. Without limiting the generality of the foregoing:

   a. In his testimony, the appellant indicated/acknowledged that the complainant had asked the appellant if he had a condom, with the appellant's answer being "no". The trial judge found that the appellant reasonably should have interpreted that exchange as an indication that the complainant did not wish to engage in vaginal intercourse without a condom.

   b. The trial judge expressly noted and relied, in that regard, upon the Supreme Court of Canada's decision in R. v. Kirkpatrick, 2022 SCC 33, indicating that a complainant who consents to sex on the condition that his or her partner wear a condom does not consent to sex without a condom.

   c. While expressly acknowledging the possibility in law and fact that the complainant thereafter might have changed her mind about willingness to engage in vaginal intercourse without a condom, the trial judge not only made a finding of fact that the complainant did not change her mind in that regard, (i.e., accepting the complainant's testimony about such matters in relation to the described vaginal intercourse), but also noted the appellant's failure, (even on the appellant's own account of the incident), to take reasonable steps to ascertain whether the complainant wished to engage in each of the sexual acts being undertaken, including the attempted vaginal intercourse and vaginal intercourse that took place; reasonable steps that were all the more pressing and necessary having regard to:

   i. the complainant's earlier effective indication that she did not wish to engage in vaginal intercourse without use of a condom;

   ii. the fact the complainant and the appellant effectively were strangers; and

   iii. the appellant admittedly knowing that his sexual actions were causing the complainant pain.

   d. In short, the trial judge provided reasons for her findings that, even on the appellant's own testimony, the complainant had communicated non-consent to vaginal intercourse and there was no basis for the appellant's professed honest but mistaken belief in communicated consent; i.e., such that the appellant knew or ought to have known that there was no consent to the vaginal intercourse that took place on the incident in question.

vii. It was argued by counsel for the appellant that the trial judge also displayed an uneven level of scrutiny in relation to the presented evidence by choosing to regard the undisputed evidence of the complainant's physical injuries as providing a measure of corroboration for the complainant's testimony regarding the described vaginal intercourse; i.e., when that evidence was said to be equally consistent with the appellant's account of the parties encountering prolonged difficulty with efforts to insert the appellant's penis into the complainant's vagina during an incident of sexual activity that was challenging but entirely consensual. In my view, however, a finding that the objective injuries experienced by the complainant were more consistent with the complainant's account of the incident, (i.e., a description of very problematic and painful vaginal intercourse being forced upon her by the appellant, despite her ongoing indications that she did not want that to happen, her ongoing requests for the appellant to stop what he was doing, and her indications of pain), than the appellant's account of the incident, (describing prolonged but entirely consensual efforts to insert the appellant's penis into the complainant's vagina, and ensure completion of vaginal intercourse between the two strangers, despite pain the complainant was experiencing and indicating), clearly was open to the trial judge based on the presented evidence.

viii. In my view, this was not a case where the trial judge overlooked or failed to address any critical evidence. Issue essentially was taken with the reasoned decisions she chose to make in that regard, and/or the weight she attributed to the evidence she chose to accept.

[27] For such reasons, I see no basis to conclude that the trial judge applied different standards of scrutiny to the evidence of the witnesses, or to interfere with the trial judge's findings of credibility and reliability and his assessment of the evidence.

[28] As the appellant has failed to establish either of the proffered grounds for his appeal against conviction, that appeal against conviction is dismissed accordingly.

APPEAL AGAINST SENTENCE

[29] Although the appellant formally sought leave to appeal to this court in relation to the sentence imposed in the court below, such an appeal lies as of right pursuant to s.813(a)(ii) of the Code.

[30] General principles in relation to such appeals against sentence include the following:

a. Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

i. vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

ii. dismiss the appeal.

b. A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.

c. Sentencing judges are in the best position to determine a just and appropriate sentence that pays heed to the sentencing objectives and principles set forth in the Code, and that is especially so where the sentence is imposed after a contested trial. Accordingly, appellate courts accord substantial deference to sentencing decisions when exercising their powers of review under s. 687(1) of the Code. Indeed, it is trite law that appellate courts cannot interfere with sentencing decisions lightly. Sentencing judges are to be afforded wide latitude, and their decisions are entitled to a high level of deference on appeal.

d. In particular, consideration of the "fitness" of a sentence appealed against does not incorporate contemplation of any very interventionist appellate review. To the contrary, an appellate court is not given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process, and a trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in an imposed sentence accordingly should only be made if the appellate court is convinced it is not fit; i.e., that it has found the sentence to be clearly unreasonable. Without limiting the generality of the foregoing:

i. An appellate court is entitled to intervene under s.687(1) of the Code where a sentencing judge erred in principle, failed to consider a relevant factor, or erred in considering an aggravating or mitigating factor, but only if it appears from the sentencing judge's decision, read as a whole, that the error had an impact on the sentence ultimately imposed.

ii. A sentencing judge's decision to weigh aggravating and mitigating factors in a particular way does not, in itself, permit appellate intervention unless the weighing is clearly unreasonable.

iii. The choice of a sentence within a sentencing range falls within the trial judge's discretion and cannot, on its own, constitute a reviewable error. Apart from errors of law or principle that impact the sentence, appellate intervention is warranted only where the sentence imposed is demonstrably unfit; i.e., clearly unreasonable.

[31] I turn first to consideration of the grounds of appeal against sentence that initially were relied upon by the appellant; i.e., prior to the later and further request made on the appellant's behalf for a stay or reduction of the custodial sentence imposed by the trial judge based on consideration of time thereafter spent by the appellant under stringent bail conditions pending the outcome of this appeal.

[32] As noted above, the appellant took issue only with the custodial aspect of the sentence imposed by the trial judge, and the only grounds of appeal against sentence in that regard originally identified in the appellant's Notice of Appeal against Conviction and Sentence, dated January 30, 2023, and still being advanced by the time of the appeal being heard before me, were that:

a. the imposed custodial sentence of 17 months, being "just one month less than the applicable maximum" custodial sentence available, (because of the Crown's election to proceed summarily in relation to the charge of sexual assault), was said to be excessive, insofar as it was said to have "overlooked" the Crown's own view of the "seriousness" of the case reflected in its election to proceed summarily rather than by indictment; and

b. the imposed custodial sentence of 17 months also was said (implicitly if not explicitly) to be excessive having regard to numerous mitigating factors, (e.g., the appellant having no criminal record, while being a supportive father with a positive work history), that "militated in favour of the principle of restraint" in the imposition (or even the avoidance) of a custodial sentence.

[33] I am not persuaded that there is any merit to such arguments, as expanded upon by counsel for the appellant in her written and oral submissions, or that the appellant, (leaving aside for one moment the request for consideration of the time spent on stringent bail conditions pending the outcome of this appeal), has demonstrated any basis for interfering with the sentence imposed by the trial judge, having regard to the principles outlined above. Without limiting the generality of the foregoing:

a. It was argued before the trial judge, (and implicitly if not expressly suggested again during argument of the appeal before me), that the sentence to be imposed in relation to a sexual assault in respect of which the Crown elected to proceed summarily, and which therefore was subject to a maximum custodial sentence of 18 months in this case, should have been approached in a manner that correspondingly "downsized" the appropriate sentence in proportion to the reduction from the maximum sentence that otherwise would have been available had the Crown elected to proceed by way of indictment. However, as properly recognized by the trial judge, the Supreme Court of Canada long ago rejected the suggestion that sentences for offences, in respect of which the Crown has elected to proceed summarily, should be "scaled down" to reflect that summary election.

b. The Supreme Court of Canada similarly has "laid to rest" any notion that the maximum allowable sentence for an offence must be reserved for the "worst offender" committing the "worst offence" of that nature. That principle, to the extent it may once have applied, no longer operates as a constraint on the imposition of a maximum available sentence for an offence where that maximum sentence is otherwise appropriate, bearing in mind the principles of sentencing set out in Part XXIII of the Code. In other words, resort to maximum sentences is adequately precluded by a proper application of those principles, including the fundamental principle of proportionality set out in s.718.1 of the Code, and Parliament's direction in ss.718.2(d) and (e) of the Code to impose the least restrictive sanction appropriate in the circumstances.

c. In the circumstances, there accordingly was nothing inherently objectionable, or any error in principle, in the trial judge deciding to impose a custodial sentence on the appellant that was at or near the maximum 18-month sentence available in the circumstances, (having regard to the Crown's election to proceed summarily), provided the trial judge committed no other demonstrable error in imposing such a sentence.

d. It was argued by counsel for the appellant that the trial judge erred in law because she made reference to our Court of Appeal having determined that a sentencing range of three-to-five years in custody generally was appropriate for sexual assaults involving penetration when prosecuted by way of indictment; i.e., with counsel for the appellant arguing that the trial judge was indicating that she felt, (inaccurately in law), that she somehow was bound to apply the maximum sentence available to her in the circumstances, in an effort to come as close as possible to that three-to-five-year sentencing range despite the Crown's election to proceed summarily in this case. In my view, however, that is neither a fair nor accurate reading of the reasons for sentence provided by the trial judge. Without limiting the generality of the foregoing:

i. The trial judge made passing reference to the three-to-five year sentencing range noted by the Court of Appeal only in the context of expressly emphasizing the very serious nature of the sexual assault offence committed by the appellant, and his high degree of responsibility for that offence; factors which, in the view of the trial judge, meant that the conditional sentence proposed by defence counsel would not sufficiently address the principles of denunciation and deterrence that required primary importance in the circumstances.

ii. To clarify and confirm her clear awareness that the aforesaid three-to-five-year sentencing range for similar offences prosecuted by way of indictment otherwise had no immediate application to the situation before her, the trial judge expressly and immediately thereafter noted that the sentencing range available to her was different, (i.e., limited to 18 months), as a result of the Crown's election to proceed summarily.

iii. The suggestion that the sentencing judge somehow improperly felt constrained to apply the maximum sentence available to her, (i.e., to bring the sentence imposed on the appellant as close as possible to the three-to-five year sentencing range that would have applied had the Crown proceeded by way of indictment), is belied by the sentence actually imposed by the trial judge; i.e., a sentence falling short of the maximum 18-month custodial sentence she could have imposed.

e. It was argued by counsel for the appellant that the trial judge over-emphasized the aggravating factors in arriving at her sentence, and "gave little, if any, weight to the principles of restraint and rehabilitation". Indeed, counsel for the appellant argued that the trial judge "only made note of [the appellant's] lack of a criminal record, disregarding the many other rehabilitative elements that were clearly present and important in this case", and suggested the trial judge actually had indicated "that legal constraints prevented her from taking those principles into account". With respect, that too is neither an accurate nor fair description of the reasons for sentence actually delivered by the trial judge. Without limiting the generality of the foregoing:

i. The trial judge expressly noted and emphasized that, while the paramount sentencing objectives in cases involving sexual assault must be deterrence and denunciation, and that the objective of rehabilitation of the offender should not be given precedence over or even equal weight to denunciation or deterrence, rehabilitation of the offender was still relevant, and restraint also was something that could not be ignored, as to do so would lead to sentences offending the fundamental principle of proportionality. In that regard, the trial judge quoted at length with approval from R. v. Browne, 2021 ONSC 2097, at paragraph 103, and independently made further abbreviated reference to the same principles later in her reasons.

ii. It is simply (and in my view wildly) inaccurate to say that the trial judge, in relation to the principles of rehabilitation and restraint, noted just one relevant and mitigating factor relevant to sentencing of the accused; i.e., the appellant's lack of a criminal record. In that regard:

  1. In addressing the "circumstances of the accused", the trial judge expressly acknowledged numerous mitigating considerations militating in favour of restraint and highlighting the appellant's prospects for rehabilitation; e.g., the appellant's lack of a criminal record, a supportive family background free from trauma or substance abuse, ongoing supports in the community in the form of his father and a long term partner of two years with whom he had a close and strong relationship, his strong and active relationship with his two daughters, his record of employment and commendation from his employer, and his prosocial contributions to the community that included many years of coaching youth basketball.

  2. The trial judge returned to and expanded upon such considerations again when expressly outlining the "mitigating circumstances" she was factoring into her decision; e.g., that the appellant was a "relatively young man", that he had "led a prosocial life, engaging in schooling and employment to support himself and his family", that he enjoyed support from his family and partner that would assist him following service of his sentence, that he was "a good father to his daughters", that he had "contributed to the community by coaching for four years", that he came before the court "with no criminal record", that he had made an "eloquent apology" to the complainant victim and her family "demonstrating insight into the offence" and the effect it had on the complainant, while also acknowledging the "severity of his conduct" and indicating "steps he would take to ensure he would not offend again".

  3. Later in her reasons, the trial judge once again made reference to the appellant's lack of a criminal record, without further mention of all the other mitigating factors and considerations relating to restraint and prospects for rehabilitation she repeatedly had mentioned earlier, at considerable length. In my view, however, the trial judge was not obliged to list all of those factors expressly again, and faulting her in that regard elevates form and phrasing over substance. The trial judge had clearly indicated that she had taken and was taking such matters into account when fashioning her sentence.

  4. The trial judge did not say that legal constraints prevented her from taking such mitigating factors or principles of rehabilitation and restraint into account. Indeed, she indicated precisely the opposite; i.e., that it was "difficult to demonstrate" that she had taken rehabilitation and restraint into account, but they were "reflected in [her] sentence". In that regard, she added that the probation order incorporated into her sentence also would assist the appellant in his rehabilitation.

iii. In my view, this accordingly is not a case where the sentencing judge failed to consider a relevant factor. In reality, the appellant simply takes issue with the particular way in which the sentencing judge weighed the aggravating and mitigating factors in this case, and contends that the custodial sentence imposed by the trial judge, while admittedly within the applicable and permissible sentencing range, was excessive. However, as noted above, such matters fall within the discretion of a sentencing judge, and do not permit appellate intervention unless the weighing was clearly unreasonable and the sentence imposed was demonstrably unfit. I do not think either description applies here.

f. Given the findings of the trial judge, (including her acceptance of the complainant's testimony in relation to the vaginal intercourse that took place on the occasion in question), this was a case where the numerous mitigating factors and principles of restraint and rehabilitation recognized and considered by the trial judge had to be balanced with consideration of the underlying realities that this was a sexual assault involving forced vaginal intercourse without use of a condom; vaginal intercourse that was painful and physically injurious to the complainant, committed in circumstances where the complainant had indicated that she did not want to engage in intercourse without a condom, expressly and repeatedly had indicated that she did not want the appellant to penetrate her vagina with his penis, expressly and repeatedly had asked the appellant to stop what he was doing, and had expressly indicated that she was experiencing pain – which nevertheless did not lead the appellant to immediately cease what he was doing. The experience caused profound and lasting psychological and financial harm to the complainant, as emphasized in her victim impact statement. As the trial judge properly noted, considerations regarding restraint and rehabilitation reflected in the many identified mitigating factors were certainly not irrelevant, but denunciation and deterrence were the primary sentencing principles to be emphasized in the circumstances.

g. Having regard to all of the above, in my view the weighing of aggravating and mitigating factors carried out by the trial judge was not clearly unreasonable, and the 17-month custodial sentence imposed by the trial judge in these particular circumstances, as they stood at the time of sentencing, was not demonstrably unfit.

[34] But for the additional considerations raised by the fresh evidence admitted at the hearing of the appeal, addressing circumstances arising after imposition of sentence, (including the time spent by the appellant on stringent bail conditions pending the outcome of this appeal), I therefore also would have dismissed the appeal against sentence.

[35] As for that later and supervening request made on the appellant's behalf for a stay or reduction of the custodial sentence imposed by the trial judge, based on consideration of time thereafter spent by the appellant under stringent bail conditions pending the outcome of this appeal:

a. The primary submission of counsel for the appellant, in the event the appeal against conviction and appeal against sentence were denied, was that this nevertheless would be an appropriate case for the appellate court to stay the imposition or execution of sentence, (i.e., with the appellant being required to serve no further time in custody), having regard to the extended time the appellant has spent, since February 23, 2023, fully complying with very strict house arrest terms of bail pending appeal. In the alternative, it was submitted that the circumstances merit a "Downes credit" effectively reducing the remaining custodial sentence the appellant will be required to serve to a maximum of four to six months.

b. While counsel for the respondent initially took the position that no such "Downes credit" should be granted, based on the appellant's initial failure to supply the court with information concerning the impact of such bail conditions, it essentially was acknowledged that any such initial failure thereafter had been addressed and rectified by the fresh evidence admitted in relation to the appeal, (without opposition of the respondent), providing the court with such information and a further account of developments since imposition of sentence by the trial judge. While acknowledging this court's jurisdiction to grant such a "Downes credit" in the circumstances, counsel for the respondent was reluctant to concede or suggest any precise credit in that regard, apart from submitting:

i. that a complete stay of sentence would be inappropriate, primarily because it would entail a result that would not sufficiently address the denunciation and deterrence required in the circumstances, but also because some of the delay in progress of the appeal was said to be attributable to the appellant, and the impact of the appellant's bail conditions was said to be somewhat overstated; and

ii. that any such credit should not exceed a maximum of four months.

[36] General principles applicable to consideration of time spent on bail conditions, and possible corresponding reduction in the imposition of sentences to be served, include the following:

a. The rationales for giving offenders credit for pre-sentence custody, and the determination of credit in that regard, do not readily apply to time spent on bail, (even under stringent conditions such as house arrest), for a number of reasons that include the following:

i. In contrast to credit for pre-sentence custody, there are no statutory provisions in the Code expressly addressing the issue of credit for time spent on bail, although that also means there is no statutory limitation on the ability of a court to take time spent on bail into account as a mitigating factor in relation to sentence.

ii. Even the most stringent bail conditions, including house arrest, tend to allow the offender the opportunity to work, attend school, attend medical appointments, conduct religious worship and address personal needs. Rehabilitative and treatment options often denied to an accused in pre-sentence custody are usually available to someone on bail, even when placed under house arrest.

iii. Unlike pre-trial custody, the impact of bail conditions cannot be assumed. Courts do not need evidence or even submissions to understand the impact of ordinary pre-trial custody on an offender because they can take judicial notice that the ordinary consequences of pre-trial custody involve a severe loss of liberty.

b. On the other hand, some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent considerable time under bail conditions involving house arrest. In particular, stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. Moreover, house arrest is a form of punishment, albeit of a different character than actual incarceration; e.g., insofar as pre-sentence house arrest varies little in character from the house arrest often imposed as a term of a conditional sentence under s.742.1 of the Code, which has been identified as a form of punishment by the Supreme Court of Canada.

c. Given the punitive aspects of time spent on such stringent bail conditions, and the reality that offenders receive no credit towards parole eligibility for time spent on pre-sentence house arrest, courts now recognize that some credit often should be given for time spent on stringent bail terms and conditions, especially house arrest, as a mitigating factor to be considered, albeit with the same court rejecting the application of any kind of formula in that regard. Generally speaking:

i. Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance, and failure to do so constitutes an error in principle.

ii. The more stringent those bail terms and conditions, the more likely it will be that delay in completion of the process, while the offender remains subject to such bail terms and conditions, will have some mitigating effect on sentence. However, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence.

iii. However, like any potentially mitigating circumstance, there will be variations in its potential impact on the sentence, and the particular circumstances of a case may dictate that little or no credit should be given for time spent on bail conditions, including house arrest.

iv. It is inappropriate to adopt any rigid formula in relation to the possible credit to be given for such a potentially mitigating circumstances, because there can be such a wide variation in bail conditions, including conditions of house arrest. In some cases, the terms of house arrest may impinge very little on an offender's liberty; e.g., with an offender being permitted to work as usual, take care of his or her family obligations as usual, and generally experience little serious impact on his or her "pre-bail" way of life. For others, house arrest may be very difficult; e.g., where an offender finds himself or herself essentially confined to a very small space, cut off from family and friends, and unable to obtain employment.

v. Courts faced with an offender who has spent time on bail under house arrest are not required to give a mathematical deduction in relation to a sentence to be served, and there is no formula that the court is required apply in that regard. Such courts instead should adopt a flexible approach, with the amount of credit and the manner in which it should be taken into account as a mitigating factor being a matter of discretion, and the amount of credit depending on numerous factors, including:

  1. the length of time spent on bail under house arrest;

  2. the stringency of the applicable bail conditions;

  3. the impact on the offender's liberty; and

  4. the ability of the offender to carry on normal relationships, employment and activity.

vi. Where an offender asks the court to take time spent under stringent bail conditions into account, it is incumbent on the offender to supply the court with information concerning the impact of such bail conditions. Where no such evidence is provided, and the court is left with insufficient information to properly assess the impact of such conditions, an offender fails to meet his or her onus in that regard and the circumstances likely will not permit any credit to be given for time spent on bail under stringent conditions. If there is a dispute as to the impact of those conditions, the onus is on the offender to establish those facts on a balance of probabilities.

vii. Credit may be given for stringent bail conditions other than house arrest, but house arrest is the most material condition.

viii. Courts considering the granting of credit for time spent under stringent bail conditions nevertheless must remember that "bail is not jail", even where house arrest is imposed, and it is an error to equate them. Without limiting the generality of the foregoing, case law does not support granting such credit at any rate approximating a "1:1 credit" for time spent under house arrest.

d. While consideration of the mitigating impact of time spent on bail conditions most frequently arises in the context of initial sentencing, (i.e., sentencing at first instance), appellate courts also recognize the need to take into account and give offenders credit for added hardship occasioned by the imposition of sentences on appeal, especially in cases where the ultimate sentencing of an accused has been delayed by a lengthy appeal process; e.g., in determining, (with the benefit of hindsight available to an appellate court at the time of deciding an appeal, and from a perspective the original sentencing judge did not have), the extent to which an offender should serve a sentence originally imposed at first instance. In particular, an appellate court can make appropriate practical dispositions based on current circumstances; i.e., recognizing that appeals take time, lives go on, things change, and that such human realities and intervening hardship cannot be ignored when an appellate court is called upon to address sentencing well after underlying events.

e. In determining whether it is in the interests of justice to incarcerate or re-incarcerate an offender when an appeal is decided, or to grant a stay in relation to the service of any remaining sentence, factors typically taken into account in making such a determination include such things as:

i. the passage of time since the offender's arrest and whether the offender has served his or her sentence entirely or in part;

ii. the extent to which incarceration will adversely affect the stability of the offender's current circumstances and ultimate rehabilitation;

iii. whether the offender has been compliant with the conditions of his or her release, and the extent to which the offender has lived a law-abiding lifestyle since his or her conviction;

iv. whether the principles of denunciation and deterrence can be adequately served without reincarcerating the offender; and

v. the extent to which the offender bears responsibility for any delay in progress of an appeal.

[37] Turning to the particular circumstances of this case, and the extent to which any such "Downes credit" should be granted in relation to the otherwise fit and proper sentence imposed by the trial judge, having regard to the time the appellant thereafter spent on stringent terms of bail pending appeal:

a. As noted above, the trial judge imposed her sentence on the appellant, including its 17-month custodial component, on January 24, 2023. The appellant began serving that sentence immediately.

b. As also noted above, after serving one month of his custodial sentence, and commencement of the appeal herein, the accused then was granted bail pending appeal by way of an order made by Justice Grace on February 23, 2023; i.e., after the appellant indisputably had served one month of the 17-month custodial sentence originally imposed herein by the trial judge. In that regard:

i. As noted above, the imposed terms of release in that regard, apart from somewhat standard provisions, (e.g., requiring the appellant to pursue the appeal with all due diligence, keep the peace and be of good behaviour, refrain from the possession of weapons, and refrain from any direct or indirect communication with the complainant or attendance within 200 meters or any known residence, workplace or school attended by the complainant), essentially confined the appellant to strict "house arrest" under a residential surety arrangement supplemented by GPS monitoring and a surety pledge of $10,000 without deposit; i.e., requiring the appellant to reside at and remain at all times within a specified apartment residence shared with J.A., (his named partner and residential surety), except during excursions in the immediate company of his surety.

ii. As emphasized by our appellate courts and noted above, terms of house arrest can vary widely, with some terms inherently impinging very little on the subject person's liberty, (e.g., with an offender being permitted to work as usual, take care of his or her family obligations as usual, and generally experience little serious impact on his or her "pre-bail" way of life), whereas terms of house arrest for others may be very difficult; e.g., where an offender finds himself or herself essentially confined to a very small space, cut off from family and friends, and unable to obtain employment.

iii. Most house arrest conditions include exemptions for medical necessities, employment and attendance for religious worship. For whatever reason, the terms of the order releasing the appellant on bail pending appeal in this case did not. Again, the appellant essentially was required to remain in the apartment residence except in the company of his surety, making him entirely dependent upon his surety, (who was maintaining other full-time employment of her own outside the home), if he needed and/or wished to go out of the home, with that arrangement being GPS monitored. The conditions of release on bail pending appeal also prohibited the appellant from travelling outside the province of Ontario in any event, (i.e., whether or not he was in the presence of his surety), which had added significance in this case because of the appellant's dual Canadian-American citizenship and his ties to family and others located south of the Canadian border. On their face, at least, the conditions of house arrest to which the appellant was subjected while on bail pending appeal were among the most stringent the court could have imposed.

iv. There was no dispute that the appellant nevertheless has remained fully compliant with those stringent terms of house arrest while on bail pending appeal since they were imposed on February 23, 2023; i.e., for a total period of two years, six months and 23 days between the appellant's release on bail pending appeal and today's delivery of my decision regarding the appeal.

c. Counsel for the respondent, in the course of her submissions, questioned whether or not all of that delay in progress of the appeal, (between the appellant's release on bail pending appeal and the release of my decision), should be taken into account in the determination of any "Downes credit" to be granted in the circumstances; i.e., suggesting that some of that delay arguably should be attributed to the appellant. In that regard:

i. Counsel for the respondent conceded that any delay associated with illness of the appellant's former counsel, the appellant's corresponding need to retain new counsel, and the unavoidable delay associated with the need for the appellant's new counsel to "get up to speed" on this matter and address it properly despite her existing commitments and admittedly full schedule, should not be attributed to the appellant.

ii. Counsel for the respondent nevertheless suggested that there were periods of delay during progress of the appeal that should be attributed to the appellant; periods which, in the submission of counsel for the respondent, totalled approximately 14 months. In that regard, counsel for the respondent pointed to the repeated failure of the appellant's previous counsel on the appeal to file material by set deadlines, (including the appellant's factum), prior to receipt of a formal indication that the appellant's previous counsel on the appeal was medically ill and would be unable to continue, as well as some further delay associated with my hearing of the appeal owing to the appellant's new counsel on the appeal having availability issues and/or needing to prepare and deliver the fresh evidence that was admitted in relation to the appeal.

iii. In the particular circumstances of this case, I nevertheless am reluctant to parse the periods of delay associated with progress of the appeal with a view to attributing any of that delay to the appellant. Without limiting the generality of the foregoing:

  1. The fresh evidence filed by the appellant, and accepted in relation to the appeal, includes sworn indications by the appellant that he has wanted to move forward quickly with the appeal since the time of his original sentencing by the trial judge. That evidence was undisputed, but I have no doubt in any event that it was true in the underlying circumstances. There no doubt may be cases where some might question whether pursuit of an appeal was simply an effort to delay the inevitable, in terms of an offender having to serve an imposed custodial sentence. In my view, that was not this case. Although the appellant's appeals herein against conviction and sentence were unsuccessful, (apart from the possibility of a "Downes credit" now being considered), the issues raised therein were not frivolous or obviously devoid of merit, and there is no indication whatsoever that they were pursued in bad faith. To the contrary, I am mindful of the fact that, prior to the events leading to his prosecution and these proceedings, the appellant was working in security, had taken a "police foundations" course at considerable expense, and was intent on pursuing a career in law enforcement. His conviction for sexual assault in these proceedings essentially created a fundamental impediment to any hope of realizing the appellant's dreams or career goals in that regard. In the circumstances, the appellant was highly motivated to pursue this appeal; i.e., with a view to removing that career impediment as soon as possible.

  2. The fresh evidence filed by the appellant indicates that his previous counsel on the appeal "became ill" in early 2024, necessitating the appellant's retention of new counsel. That was the indication understandably focused upon by counsel for the respondent. However:

     a. While I have no doubt that the appellant may have been formally advised of his previous counsel's illness in "early 2024", I think I am entitled to take a degree of judicial notice that the appellant realistically would have had no immediately available information or insight into the precise health status of his previous counsel apart from that which his previous counsel may have been inclined to acknowledge, disclose and share with clients, in relation to such inherently personal matters.

     b. I think I also am entitled to take a degree of judicial notice, (having regard to the longstanding and extensive involvement of the appellant's previous appellate counsel in numerous appeal proceedings in this region, and effective specialization in relation to such matters), that the appellant's previous counsel on the appeal had a noted reputation among the judiciary for his professionalism and punctuality in relation to his conduct of appeals. His repeated failure to perfect the appeal herein by set deadlines as promised, and failure to attend court as scheduled, were markedly atypical. Having regard to that broader context, (while refraining to the extent possible from any further speculative intrusion on inherently personal matters), in my view there is reason to infer that the appellant's previous counsel on the appeal was experiencing challenging health issues prior to the appellant being formally advised of such matters in early 2024.

     c. In my view, the delays associated with the appellant's necessary transition to new counsel, including her ability to "get up to speed", accommodate the matter within her acknowledged existing and full schedule, and take proper steps to ensure that the appeal was presented and argued properly, (including the preparation and delivery of fresh evidence offered in support of the request for the appellant's receipt of a "Downes credit" for his time spent on stringent conditions of bail pending appeal), were neither substantial nor reasonably attributable to the appellant personally. Without limiting the generality of the foregoing, as emphasized in the fresh evidence accepted in relation to the appeal, the appellant's transition to new counsel was not only unexpected, but was complicated financially by the underlying conditions of his release on bail pending appeal; i.e., conditions that effectively made it impossible for the appellant to continue with his existing employment or obtain new employment, which in turn made it extremely difficult to retain new counsel from a financial perspective, which then triggered delays associated with obtaining financial assistance via Legal Aid. Moreover, the appellant counsel's new counsel on the appeal indicated as an officer of the court, and I accept, that none of the delay in progress of the appeal following her retainer was personally attributable to the appellant, who has been consistently and persistently anxious to proceed with this appeal as soon as possible.

  iv. For such reasons, I think it appropriate to proceed on the basis that the issue for determination is whether and to what extent the appellant should receive a "Downes credit" for the entire period he has spent on his stringent terms of bail pending appeal since February 23, 2023.

d. As for the impact of the conditions of bail pending appeal imposed on the appellant, and the ability of the appellant to carry on normal relationships, employment and activity:

i. I have reviewed and considered counsel submissions, and the fresh evidence filed by the appellant in that regard, (including the appellant's extended affidavit sworn on January 6, 2025), in their entirety. My reference only to some aspects of that information should not suggest otherwise.

ii. As I noted during the course of the appeal's hearing before me, in my view some of the impacts described by the appellant in that fresh evidence, viewed in proper perspective, should be regarded as impacts flowing from the fact of his sexual assault conviction at trial, (a conviction upheld by the dismissal herein of the appellant's appeal from that conviction), rather than impacts flowing from the appellant's time spent under stringent conditions of bail pending appeal. In that regard:

  1. The appellant has emphasized that, as a result of his conviction, he has lost his security licence and ability to work in his chosen field.

  2. The appellant also has emphasized that, while he took the "police foundations" course in 2019, and owes just over $14,000 for his education expense in that regard, that degree is now unavailable to him because he cannot get a policing job with a criminal record or a security job if he is now ineligible for a security licence.

  3. The appellant has underscored the worry he had about the impact of "this situation" on his children; e.g., as he tries to shield them from, amongst other things, "knowledge about [his] conviction", so that they "do not have to suffer repercussions or judgment from their peers if others become aware of the situation". As emphasized by the appellant, he does "not want [his] children to pay the price for [his] conviction".

  4. The appellant has noted that he has stepped away from his prior involvement in coaching basketball, after being charged with sexual assault, in part "out of concern for the impact on the players and families if the charge was discovered".

  5. In describing the significant mental health issues the appellant has been experiencing, (including "severe depression", "suicidal ideation" and "anxiety"), the appellant notes that he has been facing such issues "since facing these charges". He also notes that, when he is in group gatherings or with his family, he is now, in his words: "always worried people are watching me or noticing me and I often do not fully engage because I feel separate and as a result of the stigma of my conviction".

  6. I am mindful of the reality that some impacts from conviction and impacts from time spent on stringent bail conditions are not easily compartmentalized, (e.g., insofar as the appellant may very well be experiencing significant mental health issues resulting from both impacts which no doubt compound each other), and that some of the impacts described by the appellant accordingly should be considered notwithstanding the reality that they partially attributable to his conviction.

  7. For present purposes, I nevertheless emphasize that I am equally mindful that impacts associated primarily with impacts from the appellant's upheld conviction for sexual assault, and the stigma resulting from that conviction, (in relation to the appellant's daughters, broader family circle, educational institutions, employers and others in the community), inherently are not matters lending weight to any possible "Downes credit" to be granted in this situation.

iii. Notwithstanding such caveats, in my view the fresh evidence accepted on appeal establishes that the impact of the conditions of bail pending appeal imposed on the appellant, and his ability to carry on normal relationships, employment and activity, has been significant. Without limiting the generality of the foregoing:

  1. For slightly more than 2½ years now, during progress of this appeal, the appellant essentially has been confined to the small apartment residence he shares with his partner surety, except when he leaves that residence in her company. While that suggests on its face an ability to move about freely in the community and engage in a wide range of activity in his partner's presence, his partner works full time and in my view realistically cannot be expected to work full days before then committing to spending the entirety of her remaining time outside of her residence, (e.g., in the evenings and on weekends or holidays), accompanying the appellant to employment, education, social or other activities. Moreover, as discussed in further detail below, any expectation that she would do so no doubt would have an additional detrimental impact on the appellant's relationship with his partner over time. In the result, the appellant effectively has been subject to significant and substantial constraints on his liberty for slightly more than 2½ years.

  2. It seems quite clear that the stringent terms of the appellant's bail pending appeal has had a significant and detrimental impact on the appellant's ability to "carry on normal relationships" with others. Without limiting the generality of the foregoing:

     a. There is truth in respondent counsel's submission that the appellant has not been "cut off" from his family and friends while on bail pending appeal. He clearly has been able to maintain the relationship with his partner, and he describes continued interaction with his daughters – albeit not in the manner he or they would prefer. There also is no suggestion that the appellant has been completely cut off from his mother, or ongoing indirect interaction with his other extended family members. In my view, all of that continued interaction and experience exceeds what offenders are able to experience during time in "real jail".

     b. I nevertheless accept the reality that the ongoing bail arrangements have imposed additional strain on the relationship between the appellant and his partner surety. In that regard:

        i. The appellant is now a constant presence in the small apartment residence shared with his partner, when she is there. In other words, for the past 2½ years, the appellant's partner essentially has been deprived of any opportunity whatsoever to enjoy the peace or respite of that small residence on her own, and our courts frequently are confronted with support for the maxim that excessive or relentless familiarity breeds contempt.

        ii. Again, the appellant's partner is now required, in addition to the demands of her full-time employment, to personally accompany the appellant should he need or want to leave their small residence for any reason whatsoever, including medical and other inevitable personal needs. In all but the most forgiving of partners, such realities no doubt also are likely to foster feelings of inconvenience, added obligation and corresponding resentment over time.

        iii. As noted below, the existing conditions of bail pending appeal effectively have prevented the appellant from seeking or obtaining employment, meaning that the appellant's partner, (after exhaustion of the appellant's savings), effectively has been obliged to assume all financial responsibility for the couple's expenses, as well as contributions to financial and other support the appellant previously was extending to his daughters and mother while previously working. That too no doubt has been an additional source of strain on the couple's relationship.

     c. I also accept that the existing bail pending appeal arrangements have significantly affected the appellant's ongoing relationship with his daughters, in respect of whom the appellant apparently always has made efforts to be a supportive and actively involved father although the children live primarily with their mother. Without limiting the generality of the foregoing:

        i. Parents who do not share a primary residence with their children must engage in active efforts to remain involved in such children's lives; e.g., by travelling to where such children are located, at times when such children are available to meet with that parent and vice-versa. In his undisputed affidavit material, the appellant emphasizes that he and his daughters previously were highly dependent on the appellant's ability to make himself available to his daughters on a flexible and spontaneous basis; e.g., with the appellant stepping in to provide care and supervision for his daughters when their mother had work or other commitments requiring her attention. Under his conditions of bail pending release, the ability of the appellant to spend time with his daughters now depends significantly on advance planning and coordination with his partner surety's schedule and availability.

        ii. Even when the appellant has been able to spend time with his daughters while on bail pending appeal, the terms of his release effectively have imposed additional constraints on their interaction and usual activities. In particular, even if the appellant was willing to expose his daughters to the presence of his GPS ankle monitor, (despite an indicated reluctance in that regard I find more attributable to his conviction than his conditions of bail pending release), he and his daughters nevertheless effectively have been prevented from swimming or boating together as they previously used to do; i.e., because the appellant cannot submerge or risk submerging his GPS monitor in water.

        iii. The appellant's ability to continue paying child support to his daughters effectively has been lost through his inability to obtain and maintain continued employment, (discussed in greater detail below), and the exhaustion of his savings.

     d. The fresh evidence also satisfies me that the appellant's broader family relationships have suffered in significant ways as a result of the conditions imposed on his bail pending appeal. Without limiting the generality of the foregoing:

        i. The appellant has a mother residing here in Ontario, (previously in a secluded rural location with numerous pets), who suffers from disability related to diminished eyesight and other conditions, and who relies primarily on disability-related income. The conditions of the appellant's bail pending release effectively have prevented him from continuing with his previously established routine of attending regularly at the residence of his mother, and providing her with transportation and other forms of practical support in relation to her property and animals; developments which apparently have had a significant emotional impact on his mother, who also apparently has been required to change her residence. The appellant's inability to obtain and maintain employment while on bail pending appeal, (discussed in further detail below), also has ended the appellant's ability to provide his mother with the ongoing financial support he previously had been supplying to her.

        ii. The appellant's inability to travel outside of Ontario effectively has prevented him from introducing his daughters to their paternal relatives who reside in the United States of America or facilitating their increased familiarity with their American heritage.

        iii. The appellant's inability to travel outside of Ontario effectively has curtailed his previous active involvement in the lives of his nieces and nephew, which were important family relationships to the appellant.

        iv. The appellant's inability to travel outside of Ontario also has resulted in the appellant's inability to attend important family functions in the United States, including the wedding of his father in June of 2023 and funeral of his uncle in August of 2023. Nor has the appellant been able to visit with his father, despite his father experiencing significant health issues that intermittently have reduced his father's heart function to 15% and necessitated his father being placed in an intensive care unit. In that regard, it was clarified and acknowledged, during the course of counsel submissions at the hearing of the appeal, that the appellant was told that he would be permitted a temporary variation in the conditions of his bail pending appeal allowing a compassionate visit to his ailing father provided a supportive physician's note was obtained and supplied n that regard. However, by the time such a note was obtained from the relevant ICU physician overseeing care of the appellant's father, the appellant's father had survived the danger and been removed from the ICU; developments which made the appellant reluctant to proceed with the application for a variation, owing to a fear that his doing, having regard to the changed circumstances, would be perceived as an application for variation of his bail conditions based on a misrepresentation.

  3. As explained and emphasized by the appellant in his fresh evidence affidavit, and in appellant counsel submissions, the stringent terms of the appellant's bail pending appeal effectively have prevented him from seeking any form of employment, whether in his previously chosen field of security or otherwise. In that regard:

     a. The appellant effectively cannot seek or obtain employment if he is prevented from leaving his residence except in the company of his surety; e.g., to attend job interviews, let alone attend hours of employment. Moreover, inquiries made on his behalf regarding a variation in the terms of his bail pending appeal, to make an exception for employment-related absence from his residence, resulted in the appellant being presented with a frustrating "chicken and egg" situation; i.e., wherein any variation of his terms of bail to create an exemption for employment-related absence from his residence was made contingent on his prior demonstration of having obtained such employment.

     b. The appellant's inability to work has created significant financial hardship for the appellant and other members of his family. Without limiting the generality of the foregoing:

        i. The appellant has been unable to pay off his student debt, as well as another loan he has been obliged to take out to cover financial obligations. His ability to retain counsel also has been compromised.

        ii. As noted above, the appellant also has been unable to continue his contributions to shared household expenses, creating additional burdens on his partner and corresponding tensions in that regard.

        iii. As noted above, the appellant also has been unable to continue financial support previously provided to his daughters and disabled mother.

  4. I accept that the existing terms of the appellant's bail pending appeal, (requiring him to remain in his residence unless in the presence of his partner surety, coupled with her full time work obligations), also has resulted in practical impairment, if not complete frustration, of the appellant's ability to continue with his prior community involvement coaching basketball, (even if he was disposed to do so regardless of concerns stemming from his conviction per se), or to meaningfully engage in other forms of rehabilitation programming; i.e., programming that could only be attended in the presence of his surety, therefore making the appellant's participation in such programming subject to the limitations of his partner's work schedule and other availability concerns.

  5. As noted above, I am mindful that not all of the appellant's described mental health issues are attributable to the conditions of his bail pending appeal alone. To the contrary, for the reasons I have explained, the appellant himself has made clear in his sworn affidavit material that many of those issues stem from the fact of his conviction, which now has been upheld. Having said that, I also have no hesitation accepting that the feelings of severe depression, suicidal ideation and anxiety described by the appellant almost certainly have been aggravated by the other numerous and significant detrimental impacts, outlined above, of his conditions of bail pending appeal.

  6. As emphasized in the fresh evidence, the circumstances of the appellant's release on bail pending appeal also effectively have had a detrimental impact on his physical health; i.e., because he has been unable to maintain his previous routine of physical exercise and other beneficial outdoor activity, and has experienced significant weight gain.

e. Having regard to all of the above, I am satisfied that the stringent conditions of bail pending appeal, to which the appellant has been subject for more than 2½ years now, merit a significant "Downes credit" that should be applied to the otherwise proper custodial sentence imposed by the trial judge. The remaining question in that regard is the appropriate quantification of that credit, and whether it is substantial enough to effectively reduce the remaining custodial sentence to be served by the appellant to zero, merit the stay or execution of sentence requested by counsel for the appellant, or require the re-incarceration of the appellant; i.e., a re-incarceration requiring the appellant to serve the remainder of a custodial sentence in an institution, albeit with that custodial sentence being one effectively reduced, by application of a "Downes credit", from the remaining 16 months otherwise still to be served in relation to the original custodial sentence imposed by the trial judge. In that regard:

i. I already have addressed the passage of time that has occurred since the appellant's arrest, the time the appellant spent serving one month of the 17-month sentence originally imposed by the trial judge, and the time the appellant has spent to date on his stringent conditions of bail pending appeal.

ii. As for the extent to which incarceration will adversely affect the stability of the appellant's current circumstances and ultimate rehabilitation:

  1. The current circumstances of the appellant are such that he generally is not engaged in any ongoing employment, programs of rehabilitation or other community activity that will be disrupted by a return to incarceration.

  2. The appellant nevertheless currently still enjoys some measure of ongoing but curtailed involvement and interaction with his daughters, mother and other family members; involvement and interaction that no doubt will be impacted still further, in a negative manner, by his temporary return to incarceration. Having said that, there is nothing in the material before me to suggest that the family and community support the appellant enjoys in that regard will not continue and be present to assist with his rehabilitation upon any release from renewed incarceration.

iii. As noted above, there was no dispute that the appellant has been fully compliant with the conditions of his release on bail pending appeal. Nor was there any indication that the appellant has been living anything other than a law-abiding lifestyle since his conviction.

iv. For the reasons outlined above, I am not persuaded that the appellant bears any responsibility for the delays experienced in the progress of his appeal.

v. In my view, the dominant consideration in determining whether a stay of further sentence service should be granted, or the appellant should be re-incarcerated to serve a custodial sentence remaining after the granting of a "Downes credit", is whether the principles of denunciation and deterrence can be adequately served without reincarcerating the appellant. In that regard:

  1. I am mindful of our Court of Appeal's admonition that courts should not stay the execution of a sentence where deterrence and denunciation cannot be met without further incarceration. In particular, if those principles cannot be adequately served without further incarceration, then incarceration is necessary, despite any significant hardship to the offender and the risk it may pose to his rehabilitation and full integration into the community.

  2. I also am very mindful that the Crown elected to proceed summarily in relation to this matter rather than by way of indictment, such that the sentencing precedents relied upon by the respondent, (emphasizing that sexual assaults involving forced vaginal penetration normally attract penitentiary custodial sentences in the range of three to five years, with conditional sentences rarely if ever being proportionate in the context of such violent sexual assaults, or sufficient to address the applicable sentencing objectives of denunciation and deterrence), are not directly applicable to the situation before me.

  3. Having said that, in my view there is no question that the principles of deterrence and denunciation unquestionably have heightened importance in a case of sexual assault involving forced vaginal intercourse that was painful to the victim at the time, and which left the victim with physical injuries as well as devastating emotional trauma. Notwithstanding the significant impact on the appellant of the time he has spent fully complying with stringent terms of bail pending appeal, over a very extended period of time during progress of this appeal, I do not think a substantial Downes' credit and/or stay of sentence execution, functionally equivalent to the appellant being permitted to serve little more than something in the nature of a conditional sentence house arrest in relation to his underlying offence, (albeit one of longer duration and coupled with one month of time spent in a custodial institution), would adequately serve the applicable principles of denunciation and deterrence without further incarceration.

[38] Having regard to all the circumstances, in my view justice will be served in this case if the appellant receives a "Downes credit" of ten months, effectively reducing the custodial sentence originally imposed by the trial judge from 17 months to seven months, one of which already has been served by the appellant; i.e., with the appellant to be reincarcerated for the remaining six months of his custodial sentence to be served, without any stay of execution of sentence in that regard. All other aspects of the sentence originally imposed by the trial judge are to remain unaffected by this decision on appeal.

Conclusion

[39] For the reasons outlined above:

a. The appellant's appeal against conviction is denied.

b. While the appellant's appeal against sentence imposed by the trial judge otherwise would have been denied, but for the consideration of fresh evidence filed on the appeal concerning events taking place following imposition of sentence, the custodial portion of that sentence, (with all other aspects of the sentence relating to ancillary orders and terms of probation to remain in intact and unaffected), will be varied and reduced from 17 months to seven months, (based on considerations analogous to those emphasized in R. v. Downes supra, relating to the terms, circumstances and impact of the appellant's release on bail pending the determination of this appeal), with one of those seven months already having been served and to be deemed as such; i.e., such that the appellant shall be reincarcerated for the remaining six months of his custodial sentence to be served. All other aspects of the sentence imposed by the trial judge shall remain the same.

Justice I.F. Leach

Date: September 15, 2025