R. v. Simonelli, 2026 ONSC 3085
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
ALEXANDER SIMONELLI
Appellant
Javier Arvizu, for the Respondent
Michael Lacy and Marcela Ahumeda, for the Appellant
HEARD: March 13, 2026
J. Di Luca J.
REASONS ON SUMMARY CONVICTION APPEAL
Overview
1The appellant was convicted of sexual interference of A.N. and voyeurism following a five-day trial before Misener J. of the Ontario Court of Justice.1 He was sentenced to an 18-month conditional sentence followed by 18 months of probation. A 20-year SOIRA order was also imposed.
2The appellant appeals both conviction and sentence. He raises the following issues on the conviction appeal:
(a) That the trial judge, in rejecting the appellant’s evidence, committed a palpable and overriding error by relying on unsupported assumptions about what an innocent person would do;
(b) That the trial judge misapprehended the complainant A.N.’s evidence in a material and substantial way; and,
(c) That the trial judge erred in her approach to credibility and the burden of proof.
3On the sentence appeal, the appellant takes issue with the imposition of the SOIRA order. He argues that it should be set aside entirely or, in the alternative, reduced to 10-years in duration.
4For the reasons that follow, the conviction appeal is dismissed. The sentence appeal is allowed to the extent conceded by the Crown. The SOIRA order is reduced to 10-years in length.
Brief Summary of Facts
5On May 22, 2023, the appellant went to Vaughan Mills Mall where, on the theory of the Crown at trial, he followed young girls around in order to videotape them surreptitiously and touch them sexually.
6The complainant A.N., who was 15 years old at the time, testified that the appellant touched her inappropriately on three occasions while she stood in line waiting for a fitting room at the Urban Planet store.2
7On two occasions, the appellant came into contact with her buttocks. He apologized each time, essentially suggesting that the contact was accidental.
8In relation to the third occasion, A.N. testified that the appellant touched her private areas through her clothing and whispered “You like that baby, I’d fuck the shit out of you” into her ear. She described the touch being “like a jab” wherein the appellant touched his index and middle fingers towards her vagina and anus.
9A security camera video recording of this interaction was obtained by police. The video has no sound, though the appellant can be seen coming into contact with the complainant on three occasions.
10Police also obtained other video recordings from various mall security cameras, including some footage from Shopper’s Drug Mart where the appellant is seen walking near two 14-year-old girls, V.C. and K.S., in the cosmetics aisle and elsewhere in the store. In several instances, it appears as though the appellant is following the two young women and, at times, is seen crouching down near them. The Crown’s position at trial was that the appellant was following these girls, surreptitiously filming their buttocks and positioning himself close enough to touch them.
11The appellant was identified from the mall surveillance videos and a search warrant for his phone was obtained. Police discovered deleted videos from May 22, 2023, including a video taken in Shopper’s Drug Mart and another video taken inside Urban Planet. The Shopper’s Drug Mart video is approximately seven minutes in length. It depicts V.C. and K.S. and on ten or more instances focuses on V.C.’s buttocks.
12The Urban Planet video depicts a young woman’s buttocks. Police were unable to identify this young woman.
13The voyeurism counts relate to the videos found on the appellant’s phone. The trial judge convicted the appellant of voyeurism in relation to the Shopper’s Drug Mart video but dismissed the voyeurism charge relating to the video of the unknown young woman in the Urban Planet store.3
14The appellant testified and denied the allegations. He explained that he was waiting in line at the Urban Planet store and came into accidental contact with A.N. who was standing in front of him. On the first occasion, A.N. turned and looked at him. She looked annoyed and he apologized for accidentally bumping into her. On the second occasion, A.N. stated “stop touching me”, which took the appellant by surprise. He explained that her reaction caused him to lean forward and say “Hey, I didn’t mean to bump into you.” A.N. did not appear to accept his apology which made him feel uncomfortable, so he left the line up.
15The appellant maintained that any videos he took that day using his cellphone were accidental. His phone had a “swipe to record” feature which could be activated when the phone was locked, and he explained that this must have happened while he was simply holding his phone in his hand.
16The appellant denied intentionally recording the unknown young woman at the Urban Planet store and further denied following V.C and K.S. around Shopper’s Drug Mart while filming them. He explained that he was in the cosmetics aisle because he was buying a birthday gift for a friend. He further explained that when he later found the recordings, he deleted them because they were junk.
The Positions of the Parties at Trial
17The Crown’s central submission was that A.N.’s evidence was supported by the security video which showed three instances of contact between the appellant and A.N. The Crown also argued that the contact did not appear accidental and that based on A.N.’s appearance at the time, the appellant either knew her young age or was reckless. Lastly, the Crown argued that the touching of A.N.’s buttocks was intentional and sexual in nature.
18In terms of the voyeurism counts, the Crown argued that the whole of evidence supported a finding that the appellant was intentionally positioning himself in order to film and brush up against the bodies of the young women. He recorded his actions in order to keep them as a trophy.
19The defence argued that the appellant’s actions were either accidental or the product of inadvertence. With respect to A.N., the defence argued that there were significant inconsistencies between her trial evidence and her police statement sufficient to undermine her version of events. In terms of the voyeurism counts, the defence argued that the videos themselves supported a finding they were accidentally recorded. This finding was further supported by the fact that the videos were deleted and not saved in any fashion.
The Reasons for Conviction
20The trial judge found A.N. to be a credible and reliable witness. She rejected the suggestion that the alleged inconsistencies in her evidence undermined her credibility and/or reliability. She accepted A.N.’s evidence that the appellant touched her on multiple occasions and also accepted her evidence as to what the appellant said to her when he leaned in to speak with her.
21The trial judge found the appellant’s version of events to be nonsensical and internally inconsistent in relation to the allegation involving A.N. She also rejected the appellant’s evidence that he unintentionally or accidentally recorded the young women in the Shopper’s Drug Mart. She found that his claim of accident was completely contradicted by the security camera video and by the content of the video he recorded which depicted one young woman’s buttocks.
The Conviction Appeal
(i) Palpable and Overriding Factual Error
22The appellant submits that the trial judge erred in discounting and disbelieving the appellant’s evidence based on a stereotype driven analysis that amounted to a palpable and overriding error. In short, the appellant argues that the trial judge relied on palpably false assumptions about how an innocent person would act and these assumptions overwhelmed her assessment of the appellant’s testimony.
23The respondent argues that the trial judge made no such error and instead simply considered the evidence and assessed the appellant’s credibility accordingly and permissibly.
24The key area of the appellant’s concern relates to the appellant’s explanation of his actions towards A.N. as captured in the security camera video from Urban Planet. In his evidence, the appellant testified that after he made inadvertent contact with the complainant, she turned around and said, “stop touching me.” He was worried that perhaps A.N. believed the touching was intentional or deliberate and he decided to disabuse her of that thought by telling her that he did not intend to bump into her.
25According to the appellant, when he leaned towards A.N. as depicted in the video recording, he essentially apologized for accidentally touching her.
26The complainant’s evidence about this interaction was very different. She testified that the appellant leaned towards her and whispered “You like that baby, I’d fuck the shit out of you” into her ear.
27The trial judge made the following findings in relation to this evidence:
It makes no sense to me that a man who realized he was being wrongly accused of deliberately touching an underage girl would lean towards her in a fashion that could fairly be described as intimate to explain that he was innocent. The situation called for the opposite response of creating space, and Mr. Simonelli on his own evidence was clearly aware of the danger to himself of violating A.N.’s personal space. Mr. Simonelli said he left the line abruptly because he was concerned that A.N. thought he did something.
Mr. Simonelli’s responses to points put to him by the Crown also undermine his credibility. The Crown pointed out that he repeatedly looked around, which suggested he was making sure no one was observing him before he touched A.N. She also suggested he was situating his body in a sideways fashion to block others from observing him.
His response that was looking around because he does not like waiting in line does not explain his stance, which put his right hand very close to A.N.’s buttocks without having to move much to touch her, and thereby attract attention. His explanation that he said sorry because he thought she must think he was touching her deliberately does not fit with his failure to create any space between himself and A.N. in the line after the initial complaints.
I agree with the Crown’s submissions that having been made aware that A.N. was concerned about being touched, the expected response would be to move farther back from her. Mr. Simonelli did the opposite.
I disagree with the defence submission that the crowded nature of the store made it inevitable that there would be little space between A.N. and Mr. Simonelli in the line. While the CCTV footage shows that the store is busy and that there are a number of people milling about and cutting across the line, in my assessment, there is no explanation for why Mr. Simonelli is so close to A.N. on three occasions.
Furthermore, the actions preceding the third and most egregious sexual assault appeared to be deliberate. Mr. Simonelli looks around, he moves his phone or wallet to his left hand to free his right hand, and then he moves towards A.N. This all occurs after, on Mr. Simonelli’s own evidence, A.N. had expressed her concern to him about his behaviour.
I agree with the Crown’s suggestion that Mr. Simonelli is situating his body so he can observe A.N. and move in and touch her without being detected by other people in the store. I reject Mr. Simonelli’s testimony, and it does not raise any doubt in my mind that A.N.’s allegations are true.
28The appellant takes issue with the trial judge’s finding that he acted contrary to what one might have expected from a person wrongly accused of intentionally touching a young girl. The appellant argues that this finding lacked foundation in either the evidence or in common sense. The appellant argues that his conduct, if anything, was exactly what one would expect from an innocent person. When accused, he denied intentional conduct and apologized. In order to do so in a crowded and loud store, he had to lean in to get closer to complainant. After apologizing, he left the store.
29In accordance with R. v. Kruk, 2024 SCC 7, reliance on stereotypical reasoning to dismiss the testimony of a defendant is not a stand-alone reviewable error. However, in Kruk at para 63, the Supreme Court also directed that trial judges must thoroughly and properly assess a defendant’s evidence, “as reliance on illogical, untrue, or otherwise improper assumptions in assessing the evidence of an accused is wrong and remains reversible on appeal if it amounts to palpable and overriding error.”
30In assessing alleged stereotype-based reasoning errors, the court must first determine whether the erroneous reliance on an assumption was “palpable” in the sense that it is “plainly seen”, “plainly identified” or “obvious”, see Kruk at para. 97. Once a “palpable” error has been identified, the court must then consider whether the erroneous reliance on an assumption was “overriding” in that it “is shown to have affected the result” or “goes to the very core of the outcome of the case”, see Kruk at para. 98.
31In this case, I see no error in the trial judge’s analysis, let alone a palpable and overriding error. The trial judge was assessing the appellant’s credibility based on what was depicted in the video recording of the incident. She rejected his explanation that he moved in close to the complainant to apologize for touching her. In her view, his explanation did not accord with common sense, which suggested that when confronted with an allegation of intentional touching by a young woman, an adult male would not lean into the young woman’s personal space ostensibly to apologize.
32While the trial judge was not invariably required to come to this conclusion, it was a conclusion that was reasonably open to her on the totality of the evidence and based on common-sense. Her conclusion reveals no improper reliance on stereotypical reasoning amounting to palpable and overriding error. This is a clear instance where deference is required to factual findings made by the trial judge.
(ii) Misapprehension of Evidence
33The appellant argues that the trial judge misapprehended a crucial aspect of A.N.’s evidence and further submits that this misapprehension was material to the trial judge’s reasoning process so as to amount to reversible error.
34The evidence at issue relates to whether the complainant testified that on the third occasion when the appellant touched her buttocks, his fingers penetrated her vagina and anus.
35The appellant argues that the complainant initially described the appellant as having penetrated her vagina and anus, albeit through her clothing. The appellant next argues that when the complainant was confronted with the video recording at trial, she changed her version of events and denied that there was ever any full or minor insertion, only a jabbing motion at the surface of the clothing.
36The Crown argues that the trial judge did not misapprehend this evidence but instead grappled with it and arrived at a factual conclusion that was open on the evidence, namely that there was no material inconsistency in the complainant’s evidence.
37In assessing this ground of appeal, the unfolding of the evidence is important. In her videotaped police statement, which later formed part of her evidence in chief pursuant to s. 715.1 of the Code, the complainant was asked about the third incident of touching, and she explained, “he goes likes this one finger in my butt, one finger in my vagina…And he goes like that. And I turn around and he, he goes, uh, you like that baby?”
38When asked further questions by the police officer, the complainant stated:
Um, so again, this time it’s with , I’m pretty sure his right hand. And this time he’s, his hand is cupping my butt, my right, and his fingers slowly towards, and he goes like this. He, so his hand is on my right butt cheek? Yeah. He goes like this, he goes like that. And then boom, like in, in one finger in my vagina, one finger in my butt hole.
39These comments were accompanied by hand gestures showing what the appellant was doing at the time.
40The complainant then continued by explaining that the motion was “like a jab.” She agreed that she was clothed and that her clothing “would have gone into those holes.” The complainant then told the officer that as a result of being jabbed, she suffered slight soreness to her vagina.
41At trial, the complainant accepted that the appellant could not have inserted his fingers inside her because she was wearing clothing. She also agreed that the appellant did not push his fingers through her clothing. In re-examination and in response to a question from the trial judge, the complainant agreed that there was “no form of penetration at all.” She explained:
So, during the third time that he touched me his fingers never penetrated into me, they just jabbed at the surface of my clothing but there was never any full or minor insertion, just jabbing.
42At trial, defence counsel submitted that the complainant’s evidence on whether penetration occurred was fundamentally inconsistent and that this inconsistency was fatal to her credibility and reliability.
43In her reasons for conviction, the trial judge rejected this submission and held that there was no material inconsistency in the complainant’s evidence. After reviewing the specific portions of the complainant’s evidence on this issue, the trial judge concluded:
Having watched her give her account to the police in the 715.1 video and heard her testimony in-chief, in cross, and in re-examination, I do not see an inconsistency in her evidence. Her first description is a butt grab, which she tries to demonstrate as she explains using her own words: “One finger in my vagina and one in my butthole.”
She is clear to the police in her statement that it is a jabbing. Her testimony at trial is that it was a jabbing. Her use of the term “in” is not fatal because she explains to the police that she means jabbing, which is what she said at the trial.
When asked by the officer, “Would your clothing have gone into those holes?” she says, “Yeah.” At trial, she says, “There was no penetration,” but that testimony came in response to the Crown asking her what she understood the word “insert” to mean. “Mr. Bury suggested to you that Mr. Simonelli did not insert his fingers into your private place.” “My belief of the word ‘insert’ would be for his fingers to in me. Because I had clothes on, his fingers didn’t go in me. There was no penetration at all.
A.N. was consistently reporting that Mr. Simonelli grabbed her buttocks, and that when he did so, one of his fingers jabbed her vaginal area, and one of his fingers jabbed her anus. His fingers did not go inside her body.
She was 15 years old at the time she made her police statement and was asked to describe a traumatic incident after a very long day, and after she had been examined at hospital. I’m satisfied in saying “one finger in my vagina and one finger in my butthole” to the police, A.N. was simply trying to describe how the butt grab occurred.
44In my view, the trial judge did not misapprehend the complainant’s evidence on this point. She assessed the evidence in context and made specific findings of fact that are owed deference on appeal.
45In considering the evidence in context, the trial judge concluded that the complainant was trying to tell the police officer where the appellant’s fingers went during the third incident. While she spoke of penetration, she was clear that it was a jabbing motion over the clothing.
46The trial judge appropriately viewed her evidence on this issue as a whole and in context. In doing so, it was open to the trial judge to find that A.N. described, albeit imperfectly, a jabbing motion where the appellant’s fingers came into contact with her vaginal and anal area through her clothing. It was also open to the trial judge to accept the complainant’s explanation of what the word “insert” meant to her in the context of the evidence.
47As such, it was open to the trial judge to find that there was no inconsistency with the later parts of the complainant’s testimony. This is not an instance where the complainant initially clearly described being digitally penetrated and then changed her evidence to claim that she was never penetrated.
48Far from misapprehending the complainant’s evidence, the trial judge grappled with her evidence, assessed it carefully and ultimately made the factual finding that there was no significant inconsistency on the issue of penetration. She committed no error in doing so.
(iii) Error in Approaching Credibility and Reasonable Doubt
49The appellant argues that the trial judge erred in her approach to assessing credibility and reasonable doubt by first finding that she accepted A.N.’s evidence which was supported by the video recording and then turning to the defendant’s evidence to consider whether it raised a reasonable doubt in light of the evidence already accepted. Proceeding in this fashion, the appellant argues, resulted in a reversal of the burden of proof.
50This issue can be addressed in short order. The law is clear that a trial judge does not need to treat the W.D. formula as a “magic incantation” that must be slavishly followed. The fact that trial judge considered the complainant’s evidence first does not automatically result in reversible error, see R. v. C.L.Y., 2008 SCC 2 at para. 8-12. As the Court of Appeal stated in R. v. Minuskin, 2003 CanLII 11604 at para. 22:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.), at p. 743 S.C.R., the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
51Instead, the focus in reviewing the reasons is on determining whether the trial judge understood that the trial was not simply a credibility contest and further understood the fundamental legal principles that animate the W.D. analysis, including the presumption of innocence and the burden of proof on the Crown, see R. v. Sparrow, 2008 ONCA 616 at para. 53.
52In this case, a review of the trial judge’s reasons, read as a whole, reveals no reversal of the burden of proof or any related error. The trial judge correctly noted the burden of proof and the applicability of the W.D. analytical framework. She started her analysis by assessing the complainant’s credibility and reliability in concert with the security camera videos depicting the interactions with the appellant. She gave detailed reasons addressing the alleged inconsistencies and related arguments advanced by defence counsel.
53The trial judge then turned to the appellant’s evidence. She stated that she did not believe his evidence, nor did it leave her with a reasonable doubt. The trial judge then stated that the appellant’s testimony “does not account for” what could be seen in the security camera recording. She went on to provide reasons for why she came to this conclusion.
54Crucially, while the trial judge held that the appellant’s evidence “did not account” for what could be seen in the video recording, she did not fault the appellant for failing to account for the complainant’s version of events. In other words, this is not an instance where the trial judge effectively reversed the onus by calling on the appellant to “account for” the complainant’s version of events, which had already been found to be credible and reliable.
55In coming to her conclusions on the appellant’s credibility, the trial judge was perfectly entitled to assess the appellant’s evidence against the objective security camera recording. She committed no error in doing so.
56Lastly, while not necessary to my analysis, I note that the trial judge acquitted the appellant on a second count of voyeurism on the basis that while she did not believe the appellant, she was left with a reasonable doubt as to whether that recording may have been made accidentally. Clearly, the trial judge was alive to and applied the W.D. methodology in substance.
(iv) The Sentence Appeal
57The only aspect of the sentence that the appellant takes issue with is the 20-year SOIRA order. The appellant notes that at the sentencing hearing, the Crown asked for 10-year SOIRA order. The appellant opposed the order on the basis that he did not present an enhanced risk of reoffending and that the imposition of the order would be grossly disproportionate. In imposing the SOIRA order, the trial judge noted that the order was mandatory and concluded “the imposition of the order is not grossly disproportionate to the public interest.”
58The appellant notes that the maximum available length for a SOIRA order on a summary conviction offence under s. 490.012(3) is 10 years. The Crown accepts that the trial judge erred in imposing a 20-year order in the circumstances and joins the defence in a reduction to 10 years.
59The appellant further argues that the trial judge provided insufficient reasons for imposing the order and submits that no SOIRA order was required in the circumstances of this case. While the appellant accepts that s. 490.012(3) applies and makes the order presumptive, the appellant argues that it was incumbent on the trial judge to demonstrate that she considered the factors listed in s.490.012(4) in considering whether she had been satisfied that the impact of the order would be grossly disproportionate to the public interest as set out in s. 490.012(3)(b) of the Code. The appellant argues that the trial judge’s conclusory finding prevents meaningful appellate review.
60On this issue, the Crown notes that while the trial judge’s reasons are conclusory, she is presumed to know the law and the facts of this case. She ultimately was not satisfied that the appellant had met his onus in displacing the applicability of the presumptive SOIRA order.
61In assessing this ground of appeal, I note that the appellant’s trial counsel made only very brief submissions on the propriety of a SOIRA order, essentially submitting that in view of the absence of a history, the absence of a criminal record and given the appellant’s positive attributes in terms of his likelihood of success in the future, a SOIRA order would be grossly disproportionate. The submissions occupy approximately 8 lines in a transcript of submissions that is approximately 60 pages in length.
62The trial judge should perhaps have said more in terms of why she was not satisfied that the appellant had demonstrated that a SOIRA order would be grossly disproportionate in the circumstances of his case. That said, her brevity was likely related to the nature and extent of submissions made by counsel. Even assuming that the trial judge erred in failing to provide sufficient reasons, the error is of no moment as a SOIRA order was justified by the circumstances of this case.
63The SOIRA order was presumptively mandatory and it was up to the appellant to establish that the order was not warranted. In order to do so, he had to establish that the order was not just disproportionate but “grossly disproportionate” to the purposes of SOIRA, see R. v. Eldon, 2025 ONCA 348 at para. 44. In this context, gross disproportionality signifies “more than a minor imbalance.” It means “plainly, obviously, excessively, to a startling degree, flagrantly or glaringly” disproportionate…”, see Eldon at para. 63.
64Establishing gross disproportionality requires establishing that “the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act” is clearly and substantially inferior to “the impact of the order on the person, including on their privacy or liberty”, see Eldon at para. 64. See also R. v. McLeod, 2025 BCCA 364 at para. 76-77.
65In this case, the appellant led no evidence and made no submissions on the impact that the order would have on him. While the appellant was a first-time offender, the offences involved multiple victims who were strangers to the appellant. The appellant had positive rehabilitative prospects but showed little substantive insight into his offending, maintaining that the central complainant had exaggerated her version of events. While the appellant attended for counselling sessions, no forensic risk assessment was prepared.
66Taken together, I am satisfied that the SOIRA order was appropriate in the circumstances of this case.
Conclusion
67The conviction appeal is dismissed.
68The sentence appeal is allowed to the extent of reducing the SOIRA order to 10 years in length.
J. Di Luca J.
Released: May 26, 2026
COURT FILE NO.: CR-23-91108112-00AP
DATE: 20260526
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE KING
Respondent
– and –
ALEXANDER SIMONELLI
Appellant
REASONS ON SUMMARY CONVICTION APPEAL
J. Di Luca J.
Released: May 26, 2026
Footnotes
- The appellant was also found guilty of sexual assault and assault in relation to A.N., though these charges were conditionally stayed at the sentencing hearing. A number of other charges were also dismissed at the request of the Crown at the completion of the trial evidence.
- A.N.’s evidence in chief in part consisted of a s.715.1 statement taken by police shortly after the incident occurred.
- The trial judge was left with a reasonable doubt that the Urban Planet video may been filmed accidentally.