R. v. Harris, 2026 ONSC 2306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and -
MICHAEL HARRIS
Appellant
COUNSEL:
J. Andres Hannah-Suarez, for the Respondent Crown
Michael Harris, Self-Represented Appellant
HEARD: February 4, 2026
RESTRICTION ON PUBLICATION
On December 19, 2023, and January 29, 2024, orders were made by Justice D. Rose pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This decision has been written in a manner that permits publication.
J.M. BARRETT J.
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice D. Rose)
OVERVIEW
1On April 18, 2024, following a six-day trial, the appellant, Mr. Harris, was convicted by Mr. Justice D. Rose of the Ontario Court of Justice of criminal harassment, contrary to s. 264(2)(b), of the Criminal Code, R.S.C. 1985, c. C-46 (Count 1), and sexual assault, contrary to s. 271 of the Criminal Code (Count 2). Both offences involve P.K. who, at the time of the offences, lived with her husband on the same floor as the appellant in a City of Toronto housing shelter.
2The trial unfolded as a blended trial and voir dire proceeding. The Crown adduced evidence relied on to discharge its burden of proving the appellant’s guilt beyond a reasonable doubt, while the appellant sought to establish violations of his rights under ss. 7, 8, 10 and 11 of the Canadian Charter of Rights and Freedoms. The appellant testified on the Charter voir dire. He exercised his right not to testify on the trial proper, but called one police officer as a witness.1
3The appellant was found guilty of both charges. On July 24, 2024, the trial judge imposed a six-month conditional sentence order, followed by two years of probation. The conditional sentence order has been served in its entirety. The appellant is in the second and final year of his two-year probationary period.
4The appellant appeals both conviction and sentence.
THE GROUNDS OF APPEAL
5The appellant’s Notice of Appeal, Appendix A, sets out the following grounds of appeal against his conviction:
i. S. 10, 11, 15 Canadian Charter of Rights and Freedoms. Ontario Human Rights Code. International Covenant on Civil and Political Rights. International Covenant on Economic, Social, and Cultural Rights. American Declaration of the Rights and Duties of Man.
ii. The Trial Judge improperly assisted the Crown, after the closing of the Crown’s case, by attempting to elicit evidence of intent. During the Crown’s case, the Crown did not elicit evidence that the Defendant intended to commit the alleged crimes. Also, the Trial Judge appeared to incorrectly understand that the intent in question was the Complaint’s [sic] intent to make false allegations, not why the Defendant would commit the alleged crimes. The Trial Judge appeared to believe that the Defendant was presumed guilty and had the burden of proving his innocence.
iii. The Trial Judge improperly failed to allow the Defendant to put into evidence that the arresting police officers were not credible.
iv. The police failed to conduct a reasonable investigation of the allegations. The police were negligent in not obtaining at least one piece of corroborative evidence. This includes the police negligently allowing the alleged incident location surveillance videos to be destroyed.
v. The Crown failed to disclose the alleged incident location surveillance videos to the Defendant.
vi. The police did not inform the Defendant that he was charged with criminal harassment.
vii. The Defendant was denied his right to be represented by a lawyer (Legal Aid Ontario) at trial.
viii. The Defendant was discriminated against based on his sexual orientation: asexual.
ix. The Defendant was discriminated against based on his economic/property/housing situation: homeless.
x. The Crown did not prove, beyond a reasonable doubt, that the Defendant physically and mentally (intent) committed the alleged crimes.
xi. The Crown only presented the Complainant’s allegations (oral testimony).
xii. The Complaint’s [sic] allegations, in themselves as oral testimony, did not amount to substantive/tangible proof, beyond a reasonable doubt, that the Defendant had committed the alleged crimes. The Complainant’s statements, from the date of arrest to her trial testimony, kept changing / were inconsistent. Given that the Crown solely relied on the Complainant’s testimony, without offering any corroborative evidence, the Complainant’s credibility was at issue. Also, the allegations could not physically have occurred, as the Defendant demonstrated at trial.
6In his factum, the appellant also raised a concern about police misconduct arising from what he claims is a false entry in an officer’s memo book note stating that the appellant refused to sign the “Notification of Duty to Register”. The appellant submits that he was never asked to sign the register.
7On his appeal against sentence, Appendix A to the appellant’s Notice of Appeal sets out the following grounds:
i. Despite being told by the Trial Judge, on the date of conviction April 18, 2024, that the Crown should clearly tell the Defendant what the Crown was seeking as a sentence, the Crown only said generically ‘a custodial sentence’ on April 19, 2024.
ii. Not until 4:28 p.m. on July 15, 2024 did the Crown email the Defendant the specific terms of custody, and many other terms and conditions that the Crown was seeking.
iii. Not until 11:20 p.m. on July 15, 2024 did the Crown email the Defendant the case law that the Crown was relying on for their sentencing arguments.
iv. On July 16, 2024 the Defendant appeared before the Trial Judge to make sentencing arguments. At that time, the Defendant was informed of the specific Sentence that the Crown was seeking, and the case law that the Crown was relying on. The self-represented Defendant did not have a reasonable opportunity to read the Crown’s emails, think about their content, and research the case law, before making a response/rebuttal in court on July 16th.
v. The Defendant disagrees with the sentence. A main point of contention is that the length of sentence varied depending on the location of his imprisonment. Three months if the Defendant was imprisoned in a prison. Six months if the Defendant was imprisoned (‘imprisoned’ is the Conditional Sentence Order’s wording for the shelter) in a shelter. The Defendant argues that imprisonment should not vary based on the location of the imprisonment. The Defendant also argues that other conditions of the CSO are unreasonable. Yet, the Defendant, not knowing the specifics of the sentence that the Crown was seeking, in advance of the sentencing hearing, was not given an opportunity to prepare his sentencing arguments before he was sentenced.
8In response, Crown counsel argues that the appeal against conviction and sentence ought to be dismissed. None of the grounds raised demonstrate an error of law, a miscarriage of justice, or any other basis warranting appellate intervention. Further, the sentence imposed is fit and not the product of any error in principle.
9For the reasons that follow, the appeal against conviction and sentence is dismissed.
A BRIEF SUMMARY OF THE EVIDENCE AT TRIAL
10The Crown’s main witness was the complainant, P.K., who lived on the same floor as the appellant in a City of Toronto housing shelter during the timeframe alleged in the information: August 1, 2022, to November 6, 2022. While the charge of sexual assault stemmed from one incident on November 6, 2022, the charge of criminal harassment, spanned the entire alleged timeframe and started with an initial incident in August 2022, when P.K. alleged that the appellant pushed her out of the way as she waited for an elevator at the shelter.
11On November 6, 2022, P.K. called the police and reported that the appellant had sexually assaulted her in the shelter elevator that morning. P.K. alleged the sexual assault occurred at about 8:15 a.m., as she was on her way to have breakfast in the dining room on the main floor. No one else was in the elevator at the time. P.K. alleged that as she and the appellant travelled down from the sixth floor, the appellant tapped her left cheek with his right hand and said something like, “[y]ou have no witnesses to defend you. You have no witness to prove anything”. He asked, “you sure you’re a real woman?” and “[y]ou sure, who would want to have you. This phantom husband of yours”. P.K. testified that she pushed the appellant away with her forearms and told him not to touch her. The appellant then squeezed her left breast with his fingertips three times in a kneading motion and said, “little small, aren’t they?” When the elevator door opened on the main floor, P.K. exited and reported the incident to the front desk shelter staff who advised P.K. to speak with the shift leader. The shift leader advised P.K. to call 911. P.K. called 911 at 8:35 a.m. and then waited in the lobby for the police to arrive.
12Shortly after the police arrived at the shelter, the appellant was arrested and charged with sexual assault. When informed of his right to counsel and asked, “do you want to speak with a lawyer right now”, the appellant replied “yes”. On arrest, the appellant asked the arresting officer, Police Constable (“PC”) Steve Hawley, to seize the videotape surveillance recordings from the shelter. Acting on this request, PC Hawley returned to the lobby to obtain the video recordings, but was told by shelter staff that he had to submit a written request to the City of Toronto.
13Following his arrest, the appellant was taken to 53 Division. At about 10:36 a.m., he was booked on a single charge of sexual assault. During the booking process, the appellant was subject to a second frisk search. At 11:19 a.m., the appellant spoke to duty counsel. The appellant was held for a show cause hearing.
14After speaking to duty counsel, a charge of criminal harassment was added. At trial, Detective Harold Shin testified that the charge of criminal harassment was added based on grounds he formulated, having taken a formal statement from the complainant that morning (10:35 a.m. to 11:00 a.m.). Following the complainant’s statement, Detective Shin informed the Officer-in-Charge, Detective Mungal, of his grounds for both offences. The criminal harassment charge was based on allegations that the appellant had continuously made inappropriate comments to P.K. for about two or three months, despite P.K.’s request that the appellant not talk to her. The inappropriate comments occurred whenever the appellant saw P.K. on the street; he called P.K. a “bitch”, “cunt”, “whore” and “crackhead”. The comments started after an initial incident in August 2022, when the appellant pushed P.K. as she waited for an elevator at the shelter.
15At 11:35 a.m., Detective Constable (“DC”) Cosma David sent an email to Jason Smiley, Supervisor of Corporate Security Support with the City of Toronto, requesting a copy of video surveillance footage taken of the lobby and the sixth-floor cameras at the shelter, between 8:00 a.m. and 8:45 a.m., on November 6, 2022.
16At about 4:15 p.m., the appellant was released on his own recognizance (Form 11). The judicial Release Order listed his charges as “criminal harassment” and “sexual assault” and confirmed that an inquiry was conducted of the appellant’s understanding of the order. At trial, the appellant argued that he did not hear the officer tell him that he was charged with criminal harassment and that he did not see the charge section of the Order as it was concealed by the officer’s hand.
17At trial, P.K. was cross-examined by counsel appointed, pursuant to s. 486.3 of the Criminal Code. Counsel cross-examined P.K. on inconsistencies between her testimony and her prior statements in her 911 call; her statement at the shelter, as recorded on the attending officer’s body worn camera; and her formal police statement. The inconsistencies included details about the force used during the initial August incident (e.g., whether the appellant “pushed” or “nudged” her out of the way), and details about the incident on November 6, 2022 (e.g., which breast was touched with what hand, whether the appellant “tapped” or “slapped” her cheek, and P.K.’s conduct after exiting the elevator on the main floor). At the end of the cross-examination, counsel requested a recess so that he could ask the appellant whether there were any other areas of cross-examination to cover. Following a recess, counsel confirmed that having spoken with the appellant, he had no further questions of the complainant.
18Despite the police request to the City of Toronto for a copy of the video surveillance recordings, none were produced. At trial, Mr. Smiley testified as a defence witness on the appellant’s Charter application.
19Mr. Smiley explained that it was only after DC David sent a follow-up request on January 28, 2023, that he became aware of the first email. He testified that he completely missed the first email. A day or two after receiving the second email, he checked to see if the video recordings were still available. As the City of Toronto video surveillance retention policy is 30 to 35 days, the videos were gone. Retrieval was not possible. On May 9, 2023, Detective Mungal learned of the destruction of the videos after the City of Toronto legal department contacted him in relation to a subpoena obtained by the appellant to secure Mr. Smiley’s attendance in court.
20Mr. Smiley testified that he is one of four people at the City of Toronto who deals with such requests. The City has a generic email account accessible to all four team members, however, the request in this case was sent to his personal email account. Mr. Smiley testified both his personal email address and the generic account are referenced in a policy shared with shelter staff that governs requests by the police for access to surveillance videos on city property. That policy instructed shelter staff to refer all requests by the police to Mr. Smiley’s office. At the time that DC David submitted his request, the City received “at least 10 [requests] a week”.
REASONS FOR JUDGMENT
21The trial judge gave detailed Reasons for Judgment (“Reasons”) in which he stated he had “no difficulty in finding that PK was a credible witness”. He found “no internal inconsistencies in her testimony”. The trial judge considered the concerns raised by the appellant about inconsistencies in P.K.’s testimony, but found that they had no “real effect” because they did not make “her evidence less believable”.
22Having found the complainant to be a credible witness, the trial judge proceeded to consider whether the Crown had proven the essential elements of each offence beyond a reasonable doubt.
23The trial judge first considered the charge of sexual assault. The trial judge found that he was satisfied beyond a reasonable doubt of this offence as the “nature of the touching, namely the lack of consent and the part of P.K. touched, namely, her breast, proves the essential element of the sexual assault charge”. The trial judge considered the appellant’s argument, that there was an absence of evidence of any motive or sexual intent, but these were not essential elements of the offence as set out in the leading decision of R. v. Chase, [1987] 2 S.C.R. 293. As the Crown need only prove that P.K.’s sexual integrity was violated by the non-consensual touching, the trial judge found that he was satisfied beyond a reasonable doubt.
24The trial judge next considered the offence of criminal harassment. He found that it, too, was proven beyond a reasonable doubt. In so finding, the trial judge stated that he had “no difficulty in accepting PK’s evidence that she was fearful”. Her fear was caused by the appellant’s harassment which started when he “accost[ed] her in August of 2022” and his continuous challenges to her “physical integrity”.
25The trial judge then proceeded to consider the appellant’s Charter applications. The trial judge’s findings are summarized below:
(1) Lost Evidence: The trial judge found that the lost videos did not violate the appellant’s Charter rights because: (i) there was no lack of diligence by the police; and (ii) the video was not material to the charges as the only video that existed was of the lobby. As no video existed from inside the elevator, the videos that did exist, but were lost, were “peripheral” to the allegations and “would not have affected full answer and defence in any material way”. While it “might have been better if Detective Constable David had executed a search warrant instead of sending an e-mail […], the evidence of Mr. Smiley was that the videos [would have been] provided to the police without that step if they received that request within 30 days.” In this case, the City received the request the day of the appellant’s arrest, but “ignored it for unexplained reasons”. This did “not lie at the feet of the Crown.”
(2) Legality of Arrest: The trial judge “easily dismissed” the appellant’s claim that his rights under s. 9 of the Charter were violated because the police arrested and charged him after taking a statement from P.K. without any follow-up investigation. The trial judge found that the complainant’s statement provided the requisite grounds for a lawful arrest under s. 495(1) of the Criminal Code, as explained in R. v. Storrey, [1990] 1 S.C.R. 241.
(3) Use of Facilities: The trial judge found that the appellant’s Charter rights were not violated by the police facilitating access to bathroom facilities only after the appellant was booked at the station. While the appellant asked to use the facilities while still at the shelter, the appellant also said he could wait until they were at the station.2
(4) Frisk Search: The trial judge found no s. 8 Charter violation from the frisk search conducted at the police station as the police “were fully and lawfully entitled to ensure that any property brought into the station was documented and that the appellant had nothing on him which posed a safety concern for himself or anyone else”.3
(5) No Caution on the Criminal Harassment Charge: The trial judge “rejected” the appellant’s evidence on the voir dire that when released from custody, the releasing officer hid the wording which showed two charges: sexual assault and criminal harassment. The trial judge recognized that the initial arrest was only for sexual assault. The charge of criminal harassment was added while the appellant was at the station, following P.K.’s formal statement. In finding no violation of the appellant’s s. 10(a) and 10(b) Charter rights, the trial judge stated:
There was no allegation that Mr. Harris was not read his rights to counsel or given access to a lawyer at the police station. Indeed, the evidence is that Mr. Harris was given access to a lawyer knowing that he was being charged with sexual assault. In the circumstances, I am satisfied that Mr. Harris had enough information to permit him to get legal advice when he did. See R. v. Roberts, [2018] ONCA 411 at paragraph 78.
26Having dismissed the Charter applications, the trial judge found the appellant guilty of both charges.
27Before adjourning the proceedings to await the preparation of a Pre-Sentence Report, the trial judge told the Crown that it “would be helpful” if by “tomorrow”, Mr. Harris knew what sentence was being sought by the Crown “so that he knows what to expect”. The Crown replied that she, too, wanted to review the Pre-Sentence Report, but would provide a range of sentence. The next day, the Crown advised the appellant that a “custodial sentence” was being sought. The sentencing hearing was scheduled to proceed on July 16, 2024.
The Sentencing Hearing
28At the sentencing hearing, the Crown sought a sentence of imprisonment in the range of three to four months, in addition to two years’ probation and ancillary orders (i.e., DNA order, weapons prohibition order, and an order that the appellant be subject to the sex offender registry). In support of this position, the Crown relied on three cases: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 146; and R. v. Chen, 2017 ONCJ 612.
29When asked for his submissions, the appellant indicated that he had not seen any of the cases relied on by the Crown. Consequently, the trial judge advised that the court would take a half-hour break, but if the appellant needed more time, they had “all afternoon”. When the court resumed, the appellant advised that he had read all three cases and proceeded to make submissions in which he distinguished his case from those relied on by the Crown. During his submissions, the trial judge assisted the appellant by summarizing the aggravating and mitigating factors identified by the Crown and by identifying other potential mitigating factors that could weigh in favour of a conditional sentence order, including the risk that the appellant would lose his shelter bed if absent for more than two nights. The trial judge then adjourned the passing of sentence for one week.
30On July 24, 2024, the trial judge imposed a six-month conditional sentence order followed by two years of probation. The conditional sentence order required the first three months to be served under house arrest at the shelter and that the last three months be subject to a curfew. The trial judge found the following to be aggravating factors: the sexual assault was accompanied with words intended to demean P.K.; the significant victim impact;4 and the appellant’s limited insight into his conduct. The Court also considered the following mitigating factors: no prior criminal record; excellent rehabilitative prospects; and the appellant was cooperative with the police.
31The Court found that sexual assault cases require sentences that provide denunciation and deterrence, but that rehabilitation was also a factor, given that the appellant had no prior record and “has much to offer the world”. The Court found that a suspended sentence was “too lenient” and “unproportionate”, but a conditional sentence would achieve all sentencing objectives and was therefore appropriate.
analysis
32In considering all of the grounds raised, regard must be had to the limited scope of appellate review under s. 686(1)(a) of the Criminal Code, which is made applicable to summary conviction appeals by virtue of s. 822(1) of the Criminal Code.
33An appeal is not a trial de novo. Rather, a reviewing court can only set aside a verdict if (a) the verdict is “unreasonable”, or cannot be supported by the evidence; (b) there was a wrong decision on a question of law; or (c) on any ground where there was a miscarriage of justice. Absent one of these three bases, “[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence”: Harper v. The Queen, [1982] 1 S.C.R. 2, at p. 14.
34For purposes of analysis, given the number of concerns raised by the appellant, I have grouped the grounds of appeal against conviction into four broad categories: (i) whether the verdict is unreasonable, given the absence of evidence that the appellant had any motive, any specific sexual intent, or any evidence corroborative of the complainant’s allegations; (ii) whether the trial judge misapprehended the evidence; (iii) whether the trial judge erred in dismissing the Charter applications; and (iv) whether the verdict is otherwise the product of a miscarriage of justice. I will address each of these categories followed by the grounds raised by the appellant in his appeal against sentence.
35For the reasons detailed below, the appeal against conviction and sentence is dismissed. I find that the conviction is reasonable, free from any material misapprehensions of evidence and is not the product of a miscarriage of justice. Nor is the sentence demonstrably unfit, or a product of any error in principle.
Reasonableness of Verdict
36The appellant vigorously maintains his innocence. He believes himself to be a victim of a wrongful conviction. He argues that the verdict is unreasonable as there is a complete absence of evidence that he had a sexual motive or any sexual intent. Further, the appellant argues that the Crown failed to adduce any evidence to corroborate the complainant’s account. The appellant argues that the Crown offered no evidence or explanation of why, as a fifty-four-year-old asexual person with no criminal record, he would commit the crimes alleged against a virtual stranger.
37In determining whether a verdict is unreasonable, a reviewing court must ask whether the verdict is one that no properly instructed trier of fact, acting judicially, could reasonably have rendered having regard to the whole of the evidence: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34.
38Despite the appellant’s very capable submissions, he has failed to demonstrate that the verdict is unreasonable. Motive, sexual intent and corroborative evidence are not essential for proof beyond a reasonable doubt. The trial judge was aware of all of these alleged deficiencies in the Crown’s case, yet, having carefully assessed the totality of the evidence, was satisfied that the Crown met its burden of proof beyond a reasonable doubt. The trial judge was entitled to come to this conclusion.
39The trial judge’s Reasons must be read functionally and contextually, having regard to the issues and the record: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 76, 82; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-16, 35. The decision must also be read as a whole. The instant case was not complex. Proof of the two alleged charges turned entirely on the credibility and reliability of P.K.’s testimony. The trial judge accepted P.K.’s testimony. Absent a misapprehension of evidence, this finding is entitled to significant deference.
40First, the verdicts of guilt did not require evidence of motive or evidence corroborative of the complainant’s account. While such evidence might have bolstered the strength of the Crown’s case, its absence is not fatal: s. 274, Criminal Code; Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 833-34. Consequently, the appellant’s complaint that the “Crown provided no explanation or evidence showing why Harris would target the Complainant” is of no consequence. It was for the trial judge to consider P.K.’s evidence and make findings of credibility and reliability based on the trial record as it existed, not speculate about what evidence might have been available based on a more comprehensive police investigation.
41Second, while the police could have taken the further investigative steps the appellant argues ought to have been pursued (e.g., DNA analysis of P.K.’s clothing and skin samples from areas of P.K.’s body she alleged were touched, a warrant for the surveillance camera recordings from the shelter, interview of P.K.’s husband, “SOCO” photographs, and polygraph testing as offered by the appellant), the absence of such evidence is not consequential. A conviction does not require DNA evidence: R. v. Hassan, 2026 ONCA 66, at para. 23. Further, while the appellant relies on his two offers to undergo polygraph testing as demonstrative of an “Innocent Mind”, the jurisprudence is to the contrary. For instance, in R. v. S.C.B., (1997), 36 O.R. (3d) 516 (C.A.), Doherty and Rosenberg JJ.A., for the Court of Appeal, observed that “an accused who offers to take a polygraph test risks nothing since the results are inadmissible”: at para. 29, citing R. v. Béland, [1987] 2 S.C.R. 398, at pp. 416-17. As for the failure of the police to interview P.K’s husband or take photographs of the scene, it is well established that an accused is not entitled to direct the police investigation: R. v. C.A., 2026 SKCA 14, at 40; R. v. Darwish, 2010 ONCA 124, at paras. 29-30, leave to appeal to S.C.C. denied [2010] S.C.C.A. No. 124, 2010 61140. Any inadequacies in a criminal investigation may well impede the ability of the Crown to prove the case beyond a reasonable doubt. However, in this case the trial judge was entitled to find that the appellant’s guilt was proven beyond a reasonable doubt.
42Third, the appellant raises several concerns about what he regards as behaviour by the complainant that is inconsistent with what one would expect if she was the victim of on-going harassment (e.g., making a more timely complaint, moving to a different floor or different shelter, having her “huge” husband confront the much smaller appellant, getting on the elevator alone with the appellant on November 6, 2022). This submission invites an error of law as it relies on prohibitive stereotypical reasoning for how the appellant believes the complainant ought to have responded. It is well established that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 41.
43Fourth, on appeal, as at trial, the appellant argued (and attempted to demonstrate through the use of a script) that it was physically impossible for the acts alleged to have occurred within the time parameters of the elevator ride. The trial judge considered the defence evidence of Officer Chen and accepted the officer’s evidence that the elevator from the sixth floor to the ground floor of the shelter took between 17 to 22 seconds. However, the trial judge found that this timeframe was sufficient. This finding was open to the trial judge on the record.
44Finally, while the appellant argues that the trial judge “appeared to believe that the Defendant was presumed guilty and had the burden of proving his innocence”, the trial record belies this claim. Throughout the trial proceedings, the trial judge told the appellant that he did not have to prove anything as he was presumed innocent. During the appellant’s closing submissions, the trial judge stated: “you don’t have to prove anything, but it would be helpful for me to know what your theory is about why she […] [made] this statement”. The trial judge also stated, “[y]ou didn’t testify, and you don’t have to […] But I have to take evidence as I – as it is before me.” These comments do not demonstrate a reversal of the burden of proof as claimed by the appellant. Rather, the trial judge was merely inquiring whether the appellant had any theory as to why P.K. fabricated the allegations as alleged.
45While the appellant had the absolute right not to testify on the trial proper, his failure to do so is a factor that can be considered in assessing the reasonableness of the verdict: R. v. Yizhak, 2026 ONCA 100, at para. 25; R. v. George-Nurse, 2019 SCC 12, [2019] 1 S.C.R. 570, at paras. 1-2; R. v. Noble, [1997] 1 S.C.R. 874, at para. 103.
46In short, as a reviewing court, I am not entitled to reweigh the evidence. Nor am I entitled to substitute my own view of the evidence for that of the trial judge. The verdict reached by the experienced trial judge was one that a reasonable trier of fact, acting judicially, could reach.
No Material Misapprehensions of Evidence
47The appellant further challenges the trial judge’s finding that the complainant’s testimony was credible. As noted above, this was a simple case that turned on the credibility and reliability of P.K.’s testimony. The trial judge accepted P.K.’s testimony. Absent a misapprehension of evidence, this finding is entitled to deference.
48The law concerning a misapprehension of evidence is well settled. It is best explained by Doherty J.A., in R. v. Morrissey (1995), 22 O.R. (3d) 514, at pp. 538, 541 (C.A.), as follows: “[a] misapprehension of the evidence may refer to 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 evidence.” See also: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.
49The standard for demonstrating that a trial judge is mistaken as to the substance of material parts of the evidence is stringent. The error must play an essential, material part in the reasoning of the trial judge. In other words, it must relate to the reasons for the finding of guilt, not mere narrative. It requires more than an “apparent error”. It must be “plain in the language of the decision” and “[i]t is not to be parsed from the trial judge’s reasons”: R. v. B.B., 2025 ONCA 318, at para. 4, aff’d 2026 SCC 1, citing R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 53; and Lohrer, at para. 2.
50In other words, “the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment”: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15. Where misapprehension plays an essential part in the reasoning process, the verdict cannot be taken as true, and the trial is necessarily rendered unfair. The consequence is a miscarriage of justice even if the evidence adduced at trial is otherwise capable of supporting a conviction: Lohrer, at paras. 1-2, citing Morrissey.
51I find that the trial judge’s Reasons are free of any material misapprehensions of evidence.
52The appellant claims that the trial judge erroneously failed to properly consider the “multiple material inconsistencies” in the complainant’s account. However, that the trial judge considered the inconsistencies to be less significant than argued by the appellant is not a reversible error. As stated recently in R. v. Zaki, 2026 ONCA 130, “[t]hat [the trial judge] did not assign the same significance to the deficiencies in the complainants’ evidence as urged by the appellant at trial and on appeal does not mean that his treatment of them was flawed”: at para. 6, citing R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 28.
53The appellant argues that the complainant’s account about the initial incident in August 2022 and the sexual assault on November 6, 2022, was not consistent as it related to several key details including the force used, the breast touched, and P.K.’s conduct after exiting the elevator on November 6, 2022. The trial judge was aware of the many challenges to the complainant’s credibility. The trial judge found none to be material. The appellant has failed to demonstrate that this finding is the product of any material misapprehension of evidence. That the trial judge did not address every inconsistency raised by the appellant is not demonstrative of a misapprehension of the evidence. As stated in R. v. Z.P., 2026 ONCA 126, at para. 12, “[t]rial judges are not required to expressly address in their reasons every inconsistency or arguable inconsistency in a witness’s evidence”.
The Charter Applications
54The trial judge considered each of the alleged Charter breaches but found that the appellant’s Charter rights were not violated. The Reasons reveal no legal error, misapprehension of evidence, or failure to consider relevant evidence.
55The alleged Charter breaches were not legally or factually complex. The trial judge found that the appellant did not meet his onus of establishing a breach of any of his Charter rights. On appeal, in my view, the appellant simply seeks a rehearing of the Charter applications brought at trial absent any demonstrable error in the trial judge’s analysis. My function is not to retry the case. To do so, would exceed my jurisdiction.
56Further, as no evidence was gathered from the appellant after his arrest, none of the alleged Charter violations resulted in evidence “obtained in a manner” that violated the Charter and that could potentially be remedied through the exclusion of evidence pursuant to s. 24(2) of the Charter.
57The only alleged Charter breach that could potentially have impacted the fairness of the appellant’s trial and therefore might have been remedied under s. 24(1) of the Charter is the lost video surveillance. The lost shelter videos remain a significant concern to the appellant. The appellant argues that the lost videos are the product of negligence, contrary to the trial judge’s finding. The appellant argues that the police were negligent in failing to track the request and take steps to obtain a warrant or production order. He argues that these “negligent” failures by the police deprived him of “tangible video evidence” to test the complainant’s account.
58The onus was on the appellant to establish that the police had a duty to preserve and disclose the video recordings in this case and that the breach of this duty impacted his right to full answer and defence. The trial judge found that the appellant failed to establish this. The trial judge’s factual findings are fatal to the argument that the evidence was lost due to unacceptable negligence and that a remedy of a stay of proceeding was warranted: R. v. Bauman, 2026 ONCA 173, at paras. 108-18; R. v. Bero (2000), 137 O.A.C. 336, at paras. 30-32.
59The trial judge found that although the police could have obtained a production order for the video recordings, they had no reason to believe that the normal practice of submitting an email request was a concern. Further, while the video recordings of the lobby areas were lost, the trial judge found that the lost evidence was “peripheral” to the allegations. The “core allegations of the sexual assault and criminal harassment would not have been reported by the erased video”. Consequently, the trial judge found that the lost videos “would not have affected full answer and defence in any material way”.
60At trial and on appeal, the appellant cited the decision of R. v. Osman, 2020 ONSC 1830, to argue that the police were in constructive possession of the videos and therefore had a duty to preserve and disclose. The trial judge disagreed. The trial judge's finding that the Crown provided a satisfactory explanation for the lost videos and that the unavailability of the recordings was not due to unacceptable negligence are entitled to deference on appeal: R. v. Murray, 2025 ONCA 222, 176 O.R. (3d) 502, at para. 78. The appellant has not established a palpable and overriding error tainting any of the findings that support the trial judge's conclusions.
61The decision of Osman is distinguishable. In Osman, the police viewed the surveillance video of the incident at the scene and requested a copy of the same from the club manager who agreed to provide a copy, but the copy was never picked up. In these circumstances, Code J. found, at para. 22, that “the nightclub was holding a copy of the relevant footage for the police”. However, even in these circumstances, no violation of s. 7 Charter rights occurred because the police provided an explanation for the “marginally relevant” lost evidence: at paras. 24-25.
62In the instant case, there was evidence that PC Hawley had only started to view the video recordings when a manager at the shelter intervened and advised that a written request to the City was required. While the trial judge stated that he was “quite shocked to hear” that the City erased videos after only 30 days, the trial judge rejected the submission that the City of Toronto and the Toronto Police Service are the same legal entity and found that the appellant’s s. 7 Charter rights were not violated due to a breach of the duty on the Crown and police to preserve and make disclosure.
63On appeal, the appellant argued that the court ought to grant declaratory relief that would mandate the tracking of video requests by the Toronto Police Service. No arguments were made on the jurisdiction of the court to grant such relief. Aside from the mootness of this issue to the appellant’s matter, criminal proceedings are typically an inappropriate forum for issuing declaratory relief: Mills v. The Queen, [1986] 1 S.C.R. 863, at paras. 42-43; Charley v. The Queen, 2018 ONSC 1163, at para. 45.
64Aside from my concerns regarding the court’s jurisdiction to entertain such a request, in my view, the Charter is not only effective but the appropriate instrument for addressing those cases in which evidence is lost due to the alleged inadequacies of internal police policies.
No Miscarriage of Justice
65The appellant argues that the fairness of the trial proceedings was tainted by a reasonable apprehension of bias and the ineffective cross-examination conducted by the counsel appointed pursuant to s. 486.3 of the Criminal Code. If either is established, this is a miscarriage of justice warranting appellate intervention under s. 686(1)(a)(iii) of the Criminal Code.
66In determining whether a miscarriage of justice has occurred, an appellate court must consider “whether the trial was unfair, or alternatively, whether an appearance of unfairness was created”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 73; R. v. Connor, 2026 ONCA 87, at para. 16.
67It is for the appellant to discharge the “demanding onus” of establishing some irregularity at trial that was serious enough that it creates an appearance of unfairness that would shake public confidence in the administration of justice from the perspective of a reasonable and objective person: Khan, at para. 73; Connor, at para. 16. The appellant has failed to meet that high onus.
68First, with regard to whether there was a reasonable apprehension of bias, the appellant argues that he was discriminated against based on his sexual orientation as someone who is asexual as well as his socio-economic status as a homeless person. I find there to be no merit to the allegation of bias.
69An allegation of judicial bias requires cogent evidence to meet the high threshold of establishing that an informed person would conclude that the judge would not, or did not, decide the case fairly: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 128. There is nothing in the record to suggest that the trial judge was biased: R. v. J.F., 2026 ONCA 136, at para. 18.
70In this case, the trial record demonstrates that the trial judge made consistent efforts to assist and guide the appellant throughout the proceedings, including independently raising the possibility of a conditional sentence order, rather than the three to four months of jail sought by the Crown. While the appellant complains that the imposition of a conditional sentence order deprived him of legal aid assistance on appeal, the trial judge knew from the appellant’s submissions at the sentencing hearing that the appellant risked the loss of his shelter bed if imprisoned. Rather than discriminating against the appellant because of his homelessness, the trial judge clearly attempted to assist him and fashion a fit sentence that avoided the period of imprisonment sought by the Crown.
71With regard to the competency of counsel appointed to conduct the cross-examination, to establish ineffective assistance of counsel, the appellant must establish on a balance of probabilities: (1) the facts material to the claim of ineffective assistance; (2) that counsel’s representation was ineffective because it fell below what is reasonably expected of trial counsel in all the circumstances; and (3) the ineffective representation caused a miscarriage of justice, either by rendering the trial unfair, or the verdict unreliable: R. v. R.G., 2026 ONCA 148, at para. 22; R. v. Archer (2005) 202 C.C.C. (3d) 60, at paras. 118-20. Absent a miscarriage of justice, the verdict must stand regardless of counsel’s performance: Archer, at para. 121. A review of the record in the instant case reveals none of these prerequisites.
72Counsel’s performance in this case was competent. Numerous questions were asked of P.K. that advanced the defence theory of the case, namely that the allegations were fabricated. The questions asked were clear and direct. The questions elicited inconsistencies between P.K.’s statements to the police. Notably, at the end of counsel’s cross-examination, counsel requested and was granted, a recess to consult with the appellant. When court resumed, counsel stated that having done so, he had no further questions of the complainant. On appeal, the appellant has not sought to adduce any fresh evidence to show other key areas of cross-examination that, if asked, could impact the result at trial. Nor has the appellant shown that his trial was unfair or that the verdict is unreliable. To the contrary, the trial record demonstrates that the trial judge made considerable efforts to ensure the fairness of the proceedings from start to finish.
The Sentence Appeal
73Fashioning a fit sentence is a matter falling within a sentencing judge’s discretion. As recognized in Friesen, at para. 38, “[s]entencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case”.
74Given the wide latitude accorded to sentencing judges, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene if the sentence is demonstrably unfit: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at paras. 90-91; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46.
75Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle, “‘[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably’”: Friesen, at para. 26, quoting R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, as cited in Lacasse, at para. 49. Appellate intervention is warranted only if the error in principle actually impacted the sentence: Lacasse, at paras. 44, 83.
76A sentence is demonstrably unfit if it constitutes an unreasonable departure from the principle of proportionality: Lacasse, at paras. 53-55.
77The appellant has now served the entirety of his six-month conditional sentence order. Accordingly, his appeal is moot as it relates to the duration and terms of this Order. That said, I would note that the appellant’s objection is that the six-month conditional sentence order exceeded the three-to-four-month jail sentence sought by the Crown. This is not a legal error. Nor does such a variance render the sentence demonstrably unfit.
78It is well established that a conditional sentence order need not be equivalent to the jail term that would have otherwise been imposed. Rather, the “sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence”: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 104. In fact, it is not uncommon for the duration of a conditional sentence order to exceed the duration of a jail sentence that would ordinarily have been imposed: Proulx, at para. 102; R. v. D.L., 2025 ONCA 533, at para. 46. This recognizes that a conditional sentence order is “generally more lenient than a jail term of the same duration”: D.L., at para. 46.
79The appellant also raised concerns about the timing of when he learned the specifics of the Crown’s position and the case law relied upon by the Crown. This, however, had no impact on the sentence imposed.
80Nor did the timing undermine the fairness of the sentencing proceedings. The trial judge afforded the appellant time to review the cases relied on by Crown counsel and explicitly told the appellant that he could have more time if he wished. The appellant, however, raised no concern when the court resumed and simply proceeded to make fulsome submissions in which he distinguished his case from the authorities relied on by the Crown while highlighting mitigating factors particular to his case. The appellant had ample opportunity to consider the Crown’s position and effectively addressed it. The record reveals no basis to intervene in the sentence imposed.
DISPOSITION
81The appeal from conviction and sentence is dismissed.
J.M. Barrett, J.
Released: April 20, 2026
CITATION: R. v. Harris, 2026 ONSC 2306
COURT FILE NO.: CR-24-10000054-00AP
DATE: 20260420
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and -
MICHAEL HARRIS
Appellant
Reasons for judgment
summary conviction appeal
J.M. Barrett J.
Released: April 20, 2026
Footnotes
- On March 6, 2024, the fifth day of trial, following the close of the Crown’s case, the appellant initially indicated that in addition to himself, he had three witnesses. However, after it became apparent that his first witness, Milton Robalino, brought documents that the appellant was unaware of, the appellant asked that Mr. Robalino be told that his evidence was no longer required. He then called Jason Smiley from the City of Toronto as a witness on the Charter voir dire, and Officer Pzuli Chen as a witness at trial.
- During closing submissions, the appellant abandoned this alleged Charter violation and argued only that because he had not used the bathroom, he was not “really paying attention” when informed that he was also charged with criminal harassment.
- During closing submissions, the appellant abandoned this alleged Charter violation. He explained that he initially thought it was a “wrongful authorization”, based on his mistaken belief that the booking sergeant relied on his permission to search when in fact it was the arresting officers who asked the booking sergeant for permission to search.
- P.K. submitted a victim impact statement that detailed her on-going fear and lack of trust.