His Majesty the King v. E. D., 2026 ONSC 1116

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA (P) 432/25
DATE: 2026 02 24

B E T W E E N:

HIS MAJESTY THE KING

P. Renwick, for the Respondent

Respondent

• and -

E. D.

M. Barnes, for the Appellant

Appellant

HEARD: January 27, 2026

REASONS FOR JUDGMENT

[On appeal from the judgment of Duncan J. Dated March 11, 2025]

A non-publication order in this proceeding has been used pursuant to subsection 486.4(1) of the Criminal Code .

By order of this court, no contents of the application, no evidence or the decision made in this application and no information that could identify the complainant shall be published in any document, broadcast, or transmission.

Dennison J.

Overview

1The trial judge found the appellant, Mr. D., guilty of one count of assault and acquitted him of sexual assault, mischief, and a second count of assault. There were two witnesses, the appellant and the complainant.

2The appellant submits that the trial judge made several errors in convicting the appellant of assault that may be grouped into three areas:

1. Using the complainant’s prior consistent statement to bolster the complainant’s credibility. This was the focus of the appellant’s oral submissions.
2. Misapprehending the complainant’s and the appellant’s evidence regarding the taking of the photographs of the complainant’s lip, including the reason for taking the photographs.
3. Relying on his own decision in R. v. Jaura , 2006 ONCJ 385 in disbelieving the appellant based on the complainant’s evidence.

3For the reasons set out below the summary conviction appeal is dismissed.

Evidence at Trial

4The appellant and complainant married in 2016. By May 2020, the complainant was planning to leave when she could afford to. They continued to live together and shared a bed and had an understanding that she would consent to intercourse with him more or less on demand.

5The complainant testified that on May 18, 2020 the appellant wanted to have sex. The complainant testified that the appellant forced oral sex on her and he bit her vagina very hard. The complainant testified that she kept moving into a sitting position and he kept pulling her down so he could access her vagina.

6The complainant also testified that the appellant backhanded her across the face causing a bruise and cut to her lip. She took photographs of her face and lip and reported the assault to the police.

7At the police station she told police about another incident in May 2019 relating to her cell phone. She stated that the appellant grabbed her by the shoulder and pulled her back into the house. She dropped her phone, and the appellant retrieved a hammer and smashed the phone in front of her.

8The appellant testified that he engaged in foreplay and rubbed the complainant’s breast to arouse her. She resisted. He stopped, got up and left the room. The appellant agreed that he pulled her down but explained that he did this to have access to her breast and he did not access her vagina. The appellant testified that he did not engage in oral sex, and he did not hit the complainant.

9The appellant testified that afterwards he walked by the open bathroom door and saw the complainant holding a single false tooth in her hand as she examined her injured lip.

10The appellant also testified that he did not touch the complainant when her phone broke. He saw her drop her phone and he accidently stepped on it with his work boots. He testified that he took the phone to the mall to see if it could be repaired. He ended up buying the complainant a new phone.

Trial Judge’s Reasons

11The trial judge outlined the relevant principles in deciding the case. The trial judge recognized that the appellant was presumed innocent and that the Crown had the burden to prove guilt beyond a reasonable doubt.

12The trial judge recognized this was a credibility case and that the defendant received the benefit of the doubt respecting credibility, applying the principles set out in R. v. W.(D.) , 1991 93 (SCC) , [1991] 1 S.C.R. 742 . The trial judge also noted that where the court is convinced of the truth of the complainant’s evidence, that may be a sufficient basis to ground a conviction, although the trial judge did not convict on this basis.

13The trial judge found the complainant credible for the most part. There were however some points that caused the trial judge concern. He did not accept the complainant’s evidence that she paid her own rent and expenses for the first two years after she left, because her income would not have covered the expenses. He also found that she was evasive about her reasons for coming to Canada. The trial judge also rejected the complainant’s evidence that the appellant bit her vagina as severely as she claimed and found that there was an omission in her statement to police that her mother was present for the mischief in 2019 as she testified at trial.

14The trial judge did not find the appellant’s evidence to be as impressive as the complainant’s evidence, but he did not find that it was totally unworthy of belief. The trial judge accepted the appellant’s version about what happened with the cell phone given that he replaced the phone shortly after he stated he damaged it accidently.

15Ultimately, the trial judge found that the complainant’s evidence by itself was not so credible that it overwhelmed the appellant’s evidence, and that absent corroborative evidence he could not find the appellant guilty of the offences.

16With respect to the assault, the trial judge rejected the appellant’s evidence that he saw the complainant bite her own lip and examine her lip while holding a false tooth in her hand and that this caused her injury. The trial judge found it implausible that the complainant would bite her own lip to the point of injury for no apparent reason. He also found that it was implausible that she would leave the bathroom door open when she was trying to stay clear of the appellant. The trial judge found that the complainant’s taking the photographs of the injury “indicates a spontaneous act on her part to preserve evidence of an assault just inflicted.”

17The trial judge accepted the complainant’s evidence that the appellant backhanded her to the face, and she sustained a cut lip. The trial judge found that the photographs she took shortly after the alleged assault corroborated her evidence, and therefore he was satisfied beyond a reasonable doubt that the appellant assaulted the complainant.

Analysis

Standard of Review

18In assessing the reasons of the trial judge, the court must consider the reasons as a whole, in the context and the purpose for why they were given having regard to the arguments raised at trial. The reviewing court is not to “finely parse the trial judge’s reasons in a search for error”: R. v. G.F. , 2021 SCC 20 , [2021] 1 S.C.R. 801, at para. 69 .

19The findings of fact made by a trial judge are entitled to significant deference and cannot be set aside unless the trial judge committed a palpable and overriding error or made findings of facts including inferences of fact that are clearly wrong, unreasonable or unsupported by the evidence. This level of deference reflects the fact that a trial judge has the benefit of watching and listening to the witnesses and is therefore uniquely placed to assess the credibility and reliability of witnesses: R v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3; R. v. Wadforth , 2009 ONCA 716 , 247 C.C.C. (3d) 466, at paras. 65-66 .

20A misapprehension of evidence includes “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence”: R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-18. The reviewing court must consider whether the trial judge’s failure to consider a piece of evidence was central to the trial judge’s reasoning for convicting the appellant. A misapprehension of evidence will only amount to a miscarriage of justice if striking that evidence from the judgment would leave the trial judge’s reasoning on which the conviction rests on unsteady ground: R. v. Alboukhari , 2013 ONCA 581 , 310 O.A.C. 305, at paras. 26-30 . Moreover, “[t]he fact that the appellant would have had the trial judge draw inferences from the evidence different from the ones [the trial judge] did draw does not constitute a “misapprehension” of the evidence”: R. v. Piccinini , 2018 ONCA 433 , at para. 10 .

21An appellate court should not interfere with “the trial judge’s findings of credibility if the core of the complainant’s allegations against an appellant remain largely intact on a review of the entirety of the evidence”: R. v. R.A ., 2017 ONCA 714 , 355 C.C.C. (3d) 400, at para. 46 .

22The trial judge is entitled to apply common sense in assessing the credibility and reliability of the complainant’s and appellant’s evidence: R. v. Kruk , 2024 SCC 7 , 489 D.L.R. (4th) 385, per Rowe J. at para. 155. A trial judge need not address every inconsistency in a witness’s evidence. They are however required to address how they resolved a major inconsistency. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth”: R. v. R.C ., 2021 ONCA 419 , at para. 37 .

The trial judge did not use the complainant’s prior statement to bolster her credibility

23The appellant’s primary submission is that the trial judge improperly used the complainant’s statement to the police to bolster her credibility when his reasons are considered along with his comments on the Edgar application. Or at the very least, the reasons do not provide a sufficient basis for this court to be satisfied that he did not improperly use the complainant’s police statement to bolster her credibility.

24The focus of the appellant’s argument is found in paragraph 18 of the trial judge’s reasons which states,

Because the C effectively carries the burden of proof, it is appropriate to consider her evidence first. She was obviously intelligent and articulated the events with clarity. Although she was relating events that happened around 5 years ago she seldom claimed lack of memory. She was not contradicted in any serious way from her police statement given many years earlier . [Emphasis added.]

25On the Edgar application the defence sought to introduce the accused’s statement that he did not commit the offence on the basis that the statement was a spontaneous utterance. In considering the application, the trial judge commented that it would make sense for the complainant’s statement to also be introduced as it would seem unfair for the defence to say at the end of the case that the accused was consistent but to not give the Crown the same opportunity. He stated that this seemed like “elemental fairness.” He also had some discussion with counsel about the statements going in for consistency or for the truth of their contents. The trial judge marked the two statements as letter exhibits until he had some time to process the issue. Ultimately, the Edgar application was abandoned. Neither statement was made an exhibit on trial.

26The Crown submits that the trial judge made no error. The trial judge is presumed to know the law. The trial judge’s comments on the Edgar application make a good point that the Edgar test does not recognize the unfairness to the complainant. The statement of the accused can go in to bolster the credibility of the accused, but the law does not allow for the complainant’s statement to go in for that purpose.

27The Crown submits that the trial judge was correct in his assessment that there were no major inconsistencies put to the complainant from her police statement that undermined her credibility.

28I do not find that the trial judge used the complainant’s prior statement to bolster her credibility.

29The appellant’s counsel put the complainant’s police statement to her on different occasions to suggest that there were inconsistencies, which the complainant denied or provided an explanation for what she meant in her police statement. The trial judge is presumed to know the law about the use of prior consistent statements. The trial judge’s reasons do not state that he used the consistency in her police statement to find her more credible. The trial judge’s reasons must be read as a whole. The trial judge’s reasons go on to explain why he found the complainant “to be credible – for the most part”. But he did have “a few points that cause[d] [him] some concern”. One of his concerns was that the complainant failed to mention her mother’s presence during the May 2019 incident in her statement to police. The trial judge’s later comments are consistent with his first comment that the complainant was not contradicted in any serious way from her police statement.

30With respect to the trial judge’s comments during the Edgar application, it must be remembered that the Edgar application was never pursued. The complainant’s statement was not made an exhibit at trial. In closing submissions, the accused’s counsel reminded the trial judge that he had to disabuse himself of both statements that were made lettered exhibits.

31When the record as a whole is considered, there is no basis to find that the trial judge used the complainant’s prior consistent statement to bolster her credibility.

The trial judge did not misapprehend the evidence in finding that the appellant assaulted the complainant

32The appellant submits that the trial judge misapprehended the evidence, and it is unsafe to convict on the assault charge. The appellant raises four complaints:

1. The trial judge misapprehended the evidence about the complainant taking the photographs and therefore erred in rejecting the appellant’s evidence that he saw the complainant in the bathroom;
2. The trial judge erred in finding that the photographs were not taken spontaneously;
3. The trial judge erred in finding that the complainant did not have an ulterior motive to take the photographs; and
4. The photographs are circumstantial evidence and therefore to rely on the photographs, guilt had to be the only reasonable inference.

33The Crown submits that the appellant’s submissions are an invitation for this court to retry the case based on the “cold, sterile” record of transcripts.

34The relevant part of the trial judge’s reasons states,

This leaves the count of assault of May 18, 2020. She alleges that he backhanded her to the face and she sustained a cut lip. Photos that she took shortly after show that injury. The defendant denied striking her and said that he saw her biting her lip – a suggestion that she denied. He attempted to bolster his version by claiming he walked past the open bathroom door and she was examining her lip while holding a false tooth in her hand. In theory then his evidence could innocently account for the injury to her lip depriving it of corroborative value to C’s allegation.

However, on this point I can say with confidence that the defendant is not telling the truth. It is implausible in the extreme that C would bite her own lip to the point of injury for no apparent reason. It is implausible that she would leave the bathroom door open when at that time she was trying to stay clear of him. Finally her taking the photos indicates a spontaneous act on her part to preserve evidence of an assault just inflicted. She would be unlikely to take photos of her having bitten herself.

i) The trial judge did not misapprehend the evidence about the complainant taking the photographs and did not err in rejecting the appellant’s evidence that he saw the complainant in the bathroom

35The appellant submits that it was not open to the trial judge to find that the appellant’s evidence about seeing the complainant with a fake tooth could be disbelieved based on the complainant’s evidence. I disagree.

36The complainant testified that she went to the bathroom to check her vagina and lip. She testified that she went back into the bedroom and “at this point he went outside in the kitchen or living room for a minute”. She took her phone and went back into the bathroom and took a picture of her lip. The complainant testified that she then hid her phone because she did not know what he would do if he saw her with the phone. It is clear from the complainant’s evidence that she was trying to stay clear of the appellant and did not want the appellant to know that she took photographs. It was therefore open to the trial judge to find that the complainant would not have kept the door open when taking the photographs.

37Even if the trial judge was incorrect and the bathroom door was open when she took the photographs, I do not view this as a material misapprehension of the evidence. The complainant’s evidence was that she took the photographs when the appellant was not around because she did not want him to know that she took the photographs, because she was afraid of what he might do.

38The trial judge did not materially misapprehend the complainant’s evidence about taking the photographs and therefore it was open to the trial judge to reject the appellant’s evidence that he observed the complainant in the bathroom.

ii) The trial judge did not err in finding that the photographs were taken spontaneously

39The appellant submits that the trial judge made an overriding and palpable error or misapprehended the evidence in finding that the complainant took the photographs spontaneously.

40The word spontaneous includes “proceeding from natural feeling… without external constraint” and “developing or occurring without apparent external influence”: Merriam-Webster dictionary.

41It was open for the trial judge to find that the taking of the photographs was spontaneous. No one told the complainant to take the photographs, and it was open to the trial judge to find in the circumstances that it was not preplanned. The fact that the complainant was in the bathroom and went back to the bedroom to get her phone and then took the photographs in the bathroom does not undermine the trial judge’s finding that it was a spontaneous decision.

42Even if I would not have used the word “spontaneous” to describe the complainant’s actions in taking the photographs, I do not view this as a material misapprehension of the evidence. The trial judge’s comments about taking the photographs being a spontaneous act are intertwined with his rejection of the appellant’s suggestion that the complainant bit her lip and a false tooth came out and took the photographs so that she could falsely accuse the appellant of assault. I will address the motive to fabricate argument now.

iii) It was open for the trial judge to find that the complainant did not fabricate the assault

43The appellant submits that it was not open to the trial judge to find that the complainant spontaneously took the photographs and therefore did not have a motive to fabricate the allegations. The appellant submits that the complainant took the photographs to assist her motive to fabricate the allegations. She wanted to leave the marriage but needed to find housing that she could afford. The appellant submits that falsely accusing the appellant would get him out of the house.

44There is a distinction between an absence of evidence of motive to fabricate, and a proved absence of motive. In other words, just because there is no apparent reason for a motive to fabricate, it does not mean the witness was telling the truth: R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28 . Courts must be careful in recognizing this distinction. The trial judge in this case recognized this distinction and that the appellant did not have to provide a motive for the complainant to fabricate her evidence.

45It was open to the trial judge to conclude that the complainant did not bite her own lip. The trial judge earlier in his reasons gave little weight to the appellant’s submission that the complainant had a motive to fabricate the allegations so that she could get the appellant out of the house. The trial judge found that her motivation was “at least as consistent with her being an abused woman or one trapped in an unhappy marriage as it would be with her being scheming, vengeful and manipulative.” Therefore, it was open to the trial judge to find that there was no apparent motive for the complainant to fabricate the allegations and that she had no other apparent reason for taking the photographs aside from securing evidence that the appellant hit her.

iv) The photographs are just part of the evidence considered by the trial judge in finding the appellant guilty beyond a reasonable doubt

46The appellant submits that the photographs are pieces of circumstantial evidence of the assault. Therefore, for the trial judge to rely on the photographs, the trial judge had to be satisfied based on those photographs that guilt was the only reasonable inference based on R. v. Villaroman , 2016 SCC 33 () , 2016 SCC 99, [2016] 1 S.C.R. 1000.

47Villaroman does not assist the appellant. The complainant gave direct evidence that the appellant assaulted her. This was not a circumstantial case. The trial judge engaged in the W.(D.) analysis in determining whether the complainant’s evidence satisfied him beyond a reasonable doubt that the appellant assaulted the complainant. He had a doubt where there was not other evidence to corroborate the complainant’s version of events. With respect to the assault, the trial judge considered the complainant’s evidence and the photographs and on that basis was satisfied beyond a reasonable doubt that the appellant assaulted the complainant.

48The trial judge does not analyze every piece of evidence on the reasonable doubt standard. Rather, the trial judge must consider the whole of the evidence and be satisfied that the offence occurred beyond a reasonable doubt.

3. The trial judge did not err in referring to Jaura

49In the written material the appellant submits that the trial judge erred in relying on the reasoning in his own decision of Jaura . That case stands for the proposition that the court can reject the appellant’s evidence based on the acceptance of the complainant’s evidence. There is no merit to this argument for two reasons.

50First, the trial judge did not rely on this reasoning in convicting the appellant. To the contrary, the trial judge did not find the complainant’s evidence by itself to be so credible as in Jaura , that it overwhelmed the appellant’s evidence. Rather the trial judge held that without corroborative evidence he was left with a reasonable doubt about the complainant’s evidence. As he stated,

I do not find her evidence by itself to be so credible that, as in Jaura , it overwhelms the defendant’s evidence and permits me to conclude that it is completely unworthy of belief. I am quite satisfied that the complainant’s evidence is generally provably true, but with respect to most of the counts where there is no support for her evidence, I must have a reasonable doubt.

51Second, even if the trial judge had relied on the reasoning in Jaura , that would not be an error of law because the Court of Appeal affirmed the reasoning in Jaura in R. v. J.J.R.D. , 2006 40088 (ON CA) , 215 C.C.C. (3d) 252, leave to appeal denied 2007 16771 (SCC) . This ground of appeal must fail.

Conclusion

52The appeal is dismissed.

Dennison J.

Released: February 24, 2026

COURT FILE NO.: SCA (P) 432/25
DATE: 2026 02 24

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HIS MAJESTY THE KING Respondent - and - E. D. Appellant REASONS FOR JUDGMENT Dennison J.