Court File and Parties

Court File No.: CR-25-00000833-AP

Date: October 1, 2025

Ontario Superior Court of Justice

Between:

His Majesty the King – and – Aaron Isber, Applicant

Counsel:

Erica Quayle, for the Crown

Parmbir Gill, for the Applicant

Heard: September 29, 2025

Justice C. Petersen

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the complainants in this case cannot be published, broadcast, or transmitted in any way. This decision is written in a manner that complies with this restriction so that it can be published.

Decision on Bail Pending Appeal

Overview

[1] On June 12, 2025, after a trial in the Ontario Court of Justice, Aaron Isber was found guilty of the following offences: one count of luring a person under the age of 16 years by means of telecommunications (contrary to s. 172.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46); three counts of sexual assault (contrary to s. 271 of the Criminal Code); and three counts of sexual interference (contrary to s. 151 of the Criminal Code). The trial judge conditionally stayed the three sexual assault charges pursuant to R. v. Kienapple, [1975] 1 SCR 729. Convictions were entered on the other charges.

[2] The child luring offence involved communications using Snapchat with four girls that the applicant met while volunteering at their elementary school. The trial judge found that Mr. Isber sent messages to the girls daily, sometimes hourly, into the evening hours and late at night, without their parents' knowledge or consent. He told the girls about his personal life, about his divorce and his parents' divorce. He took screenshots of their conversations and saved photos of the girls. He commented approvingly on their appearance in the photos. Although his communications were not overtly or explicitly sexual, the trial judge found that some were flirtatious. She found that he was trying to gain each child's trust to lower their inhibitions and groom them for the purpose of facilitating a sexual offence against them.

[3] The sexual offences involved three female complainants, all under the age of 14 years. One of these three complainants was also the subject of the luring charge. The trial judge found that Mr. Isber engaged in the following conduct for a sexual purpose or in circumstances of a sexual nature: he put his hand down the back of K's pants on her buttocks while she was on a swing and he wiggled his fingers on K's thigh while they were in a tent on a camping trip; he touched J's upper thigh while she was a passenger in his vehicle and while she sat next to him on a couch watching a movie; and he touched M's thigh while she was using a leg press machine at a gym.

[4] On September 5, 2025, the trial judge sentenced Mr. Isber for these offences to a global sentence of 3 years' imprisonment, plus ancillary orders. On September 22, 2025, Mr. Isber filed a Notice of Appeal of his convictions and sentence. He appears before me now on an application for bail pending his appeal.

Legislative Framework

[5] In order to succeed with this application, Mr. Isber must establish each of the following three criteria on a balance of probabilities: (i) that the appeal is not frivolous; (ii) that he will surrender himself into custody in accordance with the terms of the release order; and (iii) that his detention is not necessary in the public interest: Criminal Code, s. 679(3); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19; R. v. R.C., 2017 ONCA 806, at para. 6.

[6] The Crown argues that Mr. Isber has failed to satisfy the first and third criteria of the test. There is no concern about him being a flight risk, so the second criterion is not at issue. Mr. Isber proposes that, as part of his terms of release, he would surrender his passport and be subject to a condition that he not leave the province of Ontario.

[7] I will address the two contested criteria in turn.

Analysis

Has Mr. Isber demonstrated that the appeal is not frivolous?

[8] The "not frivolous" threshold sets "a very low bar": Oland, at para. 20. To satisfy this criterion, Mr. Isber need only be able to point to a viable ground of appeal that would warrant appellate intervention if established: R. v. Mannaseri, 2013 ONCA 647, at para. 38. He is not required to show that he is likely to succeed with his appeal. Rather, he need only establish that the proposed grounds of appeal raise arguable issues.

[9] The Notice of Appeal contains three grounds of appeal. Mr. Isber submits that:

a. The trial judge misapplied the burden and standard of proof when she convicted him of the sexual assault and sexual interference charges;

b. The trial judge provided insufficient reasons for those convictions; and

c. The trial judge reached an unreasonable verdict in respect of the child luring charge.

1st Ground of Appeal: Misapplication of W.(D.)

[10] Mr. Isber argues that the trial judge failed to apply the principles articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742, and consequently misapplied the burden of proof and standard of proof in convicting him of the sexual offences. He submits that the judge started from the premise that the complainants were credible and effectively shifted the burden onto him to prove otherwise.

[11] Mr. Isber testified during the trial and provided exculpatory evidence. He denied ever touching one of the complainants, J. He admitted to touching the other two complainants, albeit not in the specific manner alleged by K. He denied any sexual purpose or sexual context to the touching. He provided innocent explanations for the touching.

[12] On appeal, Mr. Isber argues that his evidence warranted careful assessment because it necessitated an acquittal if believed or if it raised reasonable doubt about the sexual context or sexual purpose of the touching. He submits that the trial judge erred by failing to assess or even refer to his evidence on these points in her reasons.

[13] Upon review of the totality of the trial judge's reasons for judgment, I find that this ground of appeal is weak. The trial judge summarizes Mr. Isber's testimony at the outset of her oral reasons in relation to each of the complainants' allegations. She references his denials regarding the sexual touching, "that he has absolutely not done these things," but she notes that count-to-count similar fact evidence assists her in assessing the credibility of his denials.

[14] The trial judge later recites the principles in W.(D.) and correctly instructs herself on their application. She then gives detailed reasons for why she rejects Mr. Isber's testimony. She provides examples of internal inconsistencies in his evidence and of how his evidence is contradicted by other uncontested evidence. She describes aspects of his testimony as "nonsense". She finds that he "was intentionally misleading the court" on one issue, and she concludes that parts of his testimony are "absolutely unbelievable".

[15] Although all but one of the examples she provides relate to his testimony about the communications, rather than his denials of the sexual touching, it appears that she found him to be so lacking in credibility that she rejected the entirety of his exculpatory testimony on all counts. She does not say so specifically, but her strong language about his lack of credibility implies that his testimony did not raise reasonable doubt. Moreover, she does not convict Mr. Isber simply because she rejects his testimony. Rather, she assesses the testimony of the complainants regarding the sexual touching and finds it to be credible. The argument that she failed to apply the principles in W.(D.) is therefore not a compelling ground of appeal.

[16] In the appeal, the trial judge's findings of credibility will be given deference and will only be displaced if the court finds that they cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, at para. 10; R. v. G.F., 2021 SCC 20, at para. 81. A functional and contextual reading of the trial judge's oral reasons will be adopted, rather than a fine parsing of her reasons in search for an error: G.F., at para. 69. Based on this standard of review, I find it unlikely that this ground of appeal will succeed.

[17] However, at this stage of the analysis, the likelihood of success of the appeal is not relevant. I must simply determine whether this ground of appeal raises arguable issues. Due to the way in which the trial judge organized her reasons, and the emphasis she placed on examples drawn almost exclusively from Mr. Isber's evidence about the communications, it is arguable that she did not give due consideration to his exculpatory testimony about the touching and did not apply the second step of the W.(D.) test in convicting him of the sexual offences. This ground of appeal therefore surpasses the "not frivolous" threshold.

Second Ground of Appeal: Insufficient Reasons

[18] Mr. Isber argues that the trial judge made conclusory statements without explanations or reasons for her findings, and failed to explain how significant inconsistencies in the complainants' evidence were reconciled. I find that some of the examples provided by Mr. Isber under this ground of appeal are frivolous, particularly those pertaining to J's allegations. Other examples raise arguable issues. I will only address the arguments that I find satisfy the "not frivolous" criterion.

[19] The trial judge accepted K's testimony about "the swing incident" largely because it was corroborated by an independent eyewitness. The judge noted that both K and the witness were credible and neither had material inconsistencies internally in their testimony or in relation to each other's evidence. Mr. Isber submits that this statement is incorrect because their testimony was inconsistent on four material points. He argues that the trial judge failed to acknowledge those inconsistencies or explain how they were reconciled.

[20] The Crown argues that, of the four inconsistencies raised by Mr. Isber, only one was advanced by Defence counsel at trial, and a review of the trial record explains how the trial judge resolved that inconsistency. I agree with the Crown's submission that the trial record shows why the judge was not troubled by one of the inconsistencies raised by Mr. Isber, namely the fact that K testified he used two hands to touch her buttocks whereas the witness testified that only one hand was used. During submissions, the trial judge noted that K was looking forward while on the swing and therefore could not have seen how many hands were used.

[21] I also agree with the Crown that a trial judge need not review and resolve every inconsistency in a witness's evidence, or between two witnesses' evidence, particularly if counsel does not raise the inconsistency during their submissions. However, the unresolved inconsistencies identified in this case are not all peripheral or immaterial. For example, K testified that she did not say anything when Mr. Isber put his hand down the back of her pants while pushing her on a swing, whereas the witness testified that the sexual touching ended when K yelled, "Stop! I don't like when you do that." The trial judge did not acknowledge, let alone explain how she reconciled this significant inconsistency.

[22] With respect to K's allegation that Mr. Isber wiggled his fingers on her thigh in a tent during a camping trip, the trial judge did not address her inconsistent explanations for why she did not immediately disclose the incident to her mother. Delayed disclosure is not a reason to disbelieve a complainant, but the trial judge ought to have addressed the explanations given by K for her delayed disclosure because they provide potentially exculpatory evidence for the Defence. In chief, K testified that she was "scared" to accuse Mr. Isber of sexual assault, whereas in cross-examination she testified that she thought the tickling was innocent at the time. The latter explanation could raise doubt about whether the touching occurred for a sexual purpose or in circumstances of a sexual nature. The trial judge did not grapple with this evidence in her decision.

[23] The above two examples constitute viable grounds of appeal with respect to the convictions pertaining to K's allegations. I do not believe that they are strong grounds of appeal, but they raise arguable issues.

[24] With respect to the convictions based on M's allegation, the trial judge found that the act of touching her thigh in the gym could have been benign, but the sexual nature of the touching was established beyond a reasonable doubt by the count-to-count similar fact evidence. Consequently, if there are viable grounds of appeal with respect to the convictions based on K's allegations (i.e., with respect to some of the similar acts), then there is an arguable ground of appeal with respect to the convictions based on M's allegation as well.

3rd Ground of Appeal: Unreasonable Verdict on Child Luring

[25] Mr. Isber argues that the trial judge reached an unreasonable verdict on the child luring charge because the conviction turned entirely on a misuse of similar fact evidence. He submits that the trial judge admitted the similar fact evidence across counts only for the limited purpose of assessing the actus reus of the sexual interference and sexual assault charges, not for the purpose of assessing the mens rea element of the offences. Then she proceeded to use the similar fact evidence in a way that was contrary to her own ruling, namely to support a finding that the communications with other girls were for the purpose of grooming them to facilitate a sexual offence.

[26] This argument does not constitute a viable ground of appeal. The trial judge held that the similar fact evidence was relevant to the actus reus of the alleged offences and to the question of whether the accused's denials are credible. The accused's denials encompassed not only some of the alleged touching but also the alleged sexual circumstances in which touching occurred, and the alleged sexual purpose of the touching. The trial judge did not rule that the similar fact evidence could only be used to evaluate whether the Crown had proven the actus reus of the sexual offences; she found that it was also relevant to Mr. Isber's state of mind.

[27] With respect to the child luring charge, the trial judge needed to determine whether the Crown had proven beyond a reasonable doubt that Mr. Isber's purpose in exchanging communications with the young girls was to facilitate touching them sexually. She ultimately inferred from the evidence of actual sexual touching of young girls that the purpose of his communications was to groom the recipients of his messages, gain their trust and lower their inhibitions, so as to facilitate sexual offences against them. It was open to the trial judge to rely on the similar fact evidence in this way. I do not believe this ground of appeal is even arguable.

[28] However, I do not accept the Crown's position that the application for bail pending review must be dismissed on this basis alone. The Crown submits that there is no reasonable chance of success to Mr. Isber's sole ground of appeal from the child luring conviction, so his bail application must be rejected to prevent forestalling the execution of an inevitable sentence, regardless of the outcome of the appeal from the other convictions. I disagree because the trial judge clearly stated that the conviction for child luring rested on the similar fact evidence. If the first and second grounds of appeal succeed, there will be no similar fact evidence from which to infer that the communications were for the purpose of grooming the children. The first and second grounds of appeal therefore provide an arguable (albeit weak) basis upon which to appeal the child luring conviction.

[29] For the above reasons, I find that the appeal is not frivolous.

Has Mr. Isber shown that his detention is not necessary in the public interest?

[30] The public interest criterion has two components: public safety and public confidence in the administration of justice. These two components must be considered together and should not be treated as silos: Oland, at paras. 23, 26, 27.

[31] Public safety justifies continued detention if the convicted individual is substantially likely to commit another offence or interfere with the administration of justice, and thereby endanger the safety of the public: R. v. Stojanovski, 2020 ONCA 285, at para. 18; R. v. T.S.D., 2020 ONCA 733, at para. 47; R. v. Da Silva, 2021 ONCA 693, at paras. 7-8.

[32] In this case, Mr. Isber has persuaded me that there is no serious risk to public safety if he is released pending the appeal. He has no record of prior convictions and no other outstanding charges. Moreover, he was fully compliant with his bail conditions for 20 months pending his trial and sentencing. He proposes a release plan on conditions similar to those that were in effect previously, with an increased financial pledge on his part. If necessary, his parents are prepared to act as sureties to secure his release. I cannot conclude, in the circumstances, that there is a substantial likelihood that he will commit further offences or interfere with the administration of justice if released pending appeal.

[33] The next component of the public interest criterion is public confidence in the administration of justice. Public confidence involves a balancing of two competing interests: (i) the public interest in the reviewability of judgments to avoid possible miscarriages of justice and (ii) the public interest in the immediate enforcement of judgments and sentences. The balancing of reviewability and enforceability is a qualitative and contextual exercise, with no precise formula: Oland, at para. 49; R.C., at para. 7.

[34] In this case, the absence of public safety concerns, and the absence of a flight risk, are relevant to public confidence because they attenuate the enforceability interest: Oland, at paras. 24-25, 37-41, 46. Other factors to be considered at this stage of the analysis include the length of the sentence imposed, the relief sought on appeal, the strength of the grounds of appeal, the gravity of the offences, and the circumstances surrounding the commission of the offences.

[35] The length of the sentence imposed on Mr. Isber is significant. As a first-time offender, he received a penitentiary sentence of 3 years' imprisonment. He is unlikely to have served the entire sentence before his appeal is heard. Mr. Isber concedes that this factor moderately favours enforceability of the judgment.

[36] On the other hand, the relief sought in the appeal moderately favours the reviewability interest. Mr. Isber is seeking orders quashing the convictions, substituting an acquittal on the child luring charge, and ordering a new trial on the remaining charges. If his conviction appeal is not successful, he seeks an order setting aside the 3-year sentence and substituting a conditional sentence.

[37] If his conviction appeal succeeds, and if he is acquitted of all charges after a new trial, then an injustice will result from any time he spends in custody pending the appeal. This factor favours the reviewability interest. However, the weight to be given this factor is attenuated by the weakness of the grounds of appeal.

[38] I have already commented on the strength of the grounds for the conviction appeal in my assessment of the "not frivolous" criterion. For the reasons set out earlier in this decision, I find the grounds to be very weak. Weak grounds of appeal tend to lessen the weight to be afforded to the reviewability interest: R. v. M.V., 2022 ONSC 3763, at para. 40; Da Silva, at para. 12.

[39] With respect to the sentence appeal, I find it to be extremely weak, bordering on frivolous. It is highly improbable that a conditional sentence would be substituted given the nature of the offences and number of complainants. The Supreme Court of Canada has provided clear guidance to trial judges on the need to punish sexual offences against children in a manner that is commensurate with the inherent wrongfulness of the conduct and the serious harm caused: R. v. Friesen, 2020 SCC 9.

[40] Mr. Isber was convicted of very serious offences, and the circumstances in which the offences were committed are aggravating. The offences involve both luring and inappropriate sexual touching of vulnerable children. The age of the complainants, the fact that there were multiple complainants, and the fact that Mr. Isber occupied a position of trust with respect to some of them (as a recess supervisor at their school) exacerbate the gravity of the offences. These factors weigh heavily in favour of immediate enforceability of the judgment: T.S.D., at para. 52; Da Silva, at para. 10.

[41] As the seriousness of offences increases, so too must the strength of the grounds of appeal if the reviewability interest is to outweigh the enforceability interests, such that public confidence in the administration of justice is maintained. Based on a balancing of all the relevant factors, I conclude that the public interest in the immediate enforcement of Mr. Isber's sentence outweighs the interest in releasing him pending a review of the trial judge's decision on appeal, notwithstanding that his conditional release would present a negligible risk to public safety.

[42] Mr. Isber has failed to persuade me that his detention is not necessary in the public interest. The application for bail pending appeal is therefore dismissed.

Justice C. Petersen

Released: October 1, 2025