CITATION: A.A. v. Rex, 2026 ONSC 3747
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
A.A.
Appellant
A. Khoorshed, for the Crown
S. Von Achten, for the Appellant
HEARD: June 19, 2026
REASONS FOR DECISION
Kurz J.
Introduction
1On January 16, 2024 the Appellant was convicted by Justice Calsavara of the Ontario Court of Justice of four offences following a four day trial. He was convicted on of one count of sexual assault, which occurred on April 21, 2019 as well as sexual assault, sexual interference and invitation to sexual touching, which occurred on November 24, 2019. The counts of sexual assault and invitation to sexual touching from November 24, 2019 were stayed under the Kienapple principle.
2Calsavara J. sentenced the Appellant to serve 70 days in custody, followed by 35 days of supervision in the community. That term is to be followed by 12 months of probation.
3At the time of the offences, the Appellant was 17 years old while the Complainant was 11 years old. Their mothers were close friends and their families spent a fair bit of time together. Although they were not related, the Appellant and the Complainant were like cousins to each other. The incidents which led to the convictions occurred at times that the two families got together.
4The Complainant identified as a girl at the time of the incidents but now identifies as male. To avoid confusion, I refer to the Complainant as such or by “they/them” pronouns.
Calsavara J.’s Findings Regarding the Incidents Leading to Conviction
5Calsavara J. found that the incidents leading to conviction occurred as follows:
On April 21, 2019 the two families were together at the home of the Appellant’s family. At one point when the children were away from their respective mothers, the Appellant touched the Complainant’s buttocks two or three times.
On November 24, 2019, the 17-year-old Appellant and 11-year-old Complainant were in the hallway on the second floor, outside the bedrooms of the Appellant’s family’s residence. The Appellant asked the Complainant whether she knew how to give a “blowjob”. The Complainant replied that she knew what it was but had never done it. The Appellant proceeded to take the Complainant to the on-suite bathroom of his parents’ bedroom and got the 11-year-old victim to their knees. The Appellant then leaned, facing the Complainant and undid his pants, exposing his penis. He asked the Complainant to rub his penis with their hand. He then asked them to put his penis into their mouth. The Complainant complied with both demands out of fear. The oral penetration occurred for two to five minutes until the Appellant heard the Complainant’s mother calling for them.
As set out below, the Complainant did not disclose the incidents until about two years after the first incident, in May 2021. At the same time that the Complainant disclosed the events cited above to their mother, they also disclosed that they were identifying as male.
6At trial, the Appellant flatly denied that the incidents cited above had occurred. He testified that they could not have occurred because he was never alone with the Complainant, a point about which he was emphatic. He testified that his younger brother was always “glued” to him during the five to ten hours of each family visit. He added that if he were alone with the Complainant in a bedroom, their younger brother would have raised a commotion.
7Calsavara J. found that this evidence was inherently implausible. The children would run off to the upper floor of the home together for hours at a time. Further the Appellant’s mother conceded it was possible that he and his brother were not together at all times the two families were visiting each other.
8Calsavara J. found that the Complainant’s evidence was “honest and straightforward”. They were candid and not evasive in their testimony. They did not try to avoid answering hard questions in cross-examination. Their testimony of events was “plausible and holds together”. Calsavara J. found that any discrepancies in the Complainant’s testimony, whether internal or with regard to prior statements were minor, especially coming from a child who was 11 years old at the time of the events and testifying years later. She found that ultimately there were no material inconsistencies or implausibility in the Complainant’s testimony.
9The Defence offered the theory that the Complainant had a motive to lie about the events in question because they desired attention or sought to deflect their mother from the revelation of their male identification. Calsavara J. rejected that defence as well as the claim that the buttock touching occurred accidentally during the course of play. Calsavara earlier rejected an application under Criminal Code s.278 to obtain the Complainant’s mental health records, finding that the request for those confidential records did not meet the test under that provision.
Arguments on Appeal
10The sole ground of appeal is that the Appellant was deprived of the effective assistance of counsel. It is alleged that trial counsel:
Focussed excessively on the change in the Complainant’s gender identification;
Failed to cross-examine the Complainant on the lack of opportunity to commit the offences;
Failed to bring a s. 276 application regarding an alleged previous sexual incident between the Complainant and the Appellant;
Failed to obtain an updated psychological report regarding the Appellant.
11I will first review the test for a finding of ineffective counsel at a criminal trial. I will then consider the allegations cited above in light of that test.
12In R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120, Doherty J., writing for the Ontario Court of Appeal summarized the three elements necessary for a successful claim of ineffective assistance at trial, as follows:
119 An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:
An appellate court's review of trial counsel's performance should be deferential ... deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.
120 Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse1, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result. The appellant says he was convicted because of the serious shortcomings in counsel's representation of him.
13In R. v. Fiorilli, 2021 ONCA 461, Paciocco J.A. writing for the Court of Appeal for Ontario pointed out at para. 47 citing Joanisse, that "[c]ounsel's failure to meet competence standards does not automatically lead to a reversal of a conviction", as "[t]he ultimate purpose of the appellate inquiry is not to grade counsel's performance, but to determine whether a miscarriage of justice occurred".
14At para. 48, Paciocco J.A. summarized the test for a finding of ineffective counsel2 as follows:
An appellant must establish:
i. the facts on which the claim is grounded [the factual component];
ii. the incompetence of the representation provided by trial counsel (the performance component); and
iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).
15Paciocco J.A. pointed out “that the proper analytical order of the three-part test is (i), (iii) and then (ii)”. That is “because if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry”3.
16As set out above, in looking to whether the Appellant has established facts material to the claim of ineffective assistance, I must consider them in light of the “strong presumption of competence in favour of counsel”: Archer, at para. 140, Fiorilli, at para. 51.
17Paciocco J.A. offered the following helpful analysis of the performance component at paras. 52-53 of Fiorilli, as follows:
52To meet the performance component of the test "the appellant must demonstrate that counsel's acts or omissions amounted to incompetence", with incompetence "measured against a reasonableness standard": Archer, at para. 119. The test for establishing incompetence is "a strict one"; the appellant must show that "the acts or omissions of counsel could not 'have been the result of reasonable professional judgment'": R. v. Prebtani, [2008] O.J. No. 4198, 2008 ONCA 735, 243 O.A.C. 207, at para. 3 (quoting from R. v. B. (G.D.), at para. 27), leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 153.
53In assessing the performance component, an appellate court must be mindful that the "art of advocacy yields few, if any, absolute rules", and that there exists a "broad spectrum of professional judgment that might be considered reasonable": R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722, [1997] O.J. No. 961, 114 C.C.C. (3d) 225 (C.A.), at p. 247 C.C.C., leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 248. In Archer, at para. 119, Doherty J.A. helpfully elaborated on the highly deferential standard that applies when assessing the performance component:
That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance".
18To meet the prejudice branch of the test, the appellant must prove that a miscarriage of justice has occurred, either by rendering the trial unfair or the verdict unreliable: Fiorilli, at para. 54.
Analysis
19In light of the legal principles offered above, I consider the four arguments raised by the Appellant above.
1. Did Counsel Focus Excessively on the Change in the Complainant’s Gender Identification?
20The Appellant claims that trial counsel focussed excessively on the Complainant’s gender identification while cross-examining them. He adds that the issue has no relevance or connection to the charges he faced.
21Trial counsel did cross-examine the Complainant on the timing of their identification as male but not on gender identification in general. Counsel did so because the Complainant first reported the events which led to the laying of charges against the Appellant at the same time that they identified themselves to their mother as male. Thus, the timing of the Complainant’s announcement was relevant to the issue of their credibility in light of the defence theory that the allegations of sexual impropriety against the Appellant were only raised in order to diminish the impact of the announcement of their new gender identification.
22I have reviewed the transcript of defence counsel’s cross-examination of the Complainant. It was reasonable to raise the issue of the contemporaneous timing of the Complainant’s two disclosures to their mother as a way to challenge their credibility. Counsel did that, but not excessively. While this defence did not succeed, it may have been the best defence available. Counsel acted reasonably regarding the issue of the Complainant’s gender identification and its timing.
2. Did Counsel fail to cross-examine the Complainant on the lack of opportunity to commit the offences?
23This is a puzzling argument by the Appellant. Counsel did cross-examine the Complainant about the issue of the opportunity to commit the offences. He also cross-examined her on minor inconsistencies in this regard between her evidence at a preliminary hearing (regarding adult charges which were later withdrawn against the Appellant) and at trial. That is clear in the transcript. Trial counsel also called the Appellant’s mother to testify in support of the Appellant’s narrative. However, she was forced to admit in cross-examination that the Appellant’s brother was not with him at every moment during their visits with the Complainant’s family.
24Calsavara J. considered the defence of lack of opportunity but rejected it as implausible and in defiance of common sense. She also considered the cross-examination on that issue and the manner it was not in accord with the evidence-in-chief but found no contradiction.
25I must be especially circumspect in judging the cross-examination of counsel in this regard, understanding that the standard is that of reasonable counsel and that, as set out above, there is a broad spectrum of cross-examination approaches. In reading the transcript of the cross-examination of the Complainant, I do not see trial counsel as having acted in a manner which falls below professional standards.
26I add that counsel was presented with the challenge of a young witness, who would inevitably be given a great deal of leeway by the Court in regard to minor inconsistencies in their evidence. That was the case here in light of factors such as age, time since the alleged offences and the sensitivity of the gender issues. Counsel performed professionally in light of those challenges.
3. Did trial counsel act incompetently by failing to bring a s. 276 application?
27The Applicant claims that trial counsel acted incompetently by failing to bring an application for leave to lead evidence of other sexual activity under s. 276 of the Criminal Code.
28The relevant provisions are found at s. 276 (1) and (2) and read as follows:
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
29The Appellant asserts that before the time of the two offences, the Complainant put their hand down his pajama bottom, touching his genitals, before he pushed their hand away. In her submissions, appellate counsel argued that this evidence should have been placed before the trial judge because that evidence would have been relevant to the credibility of the Complainant. The Appellant’s factum failed to explain the relevance of this issue or why this evidence would be admissible under s. 276.
30Trial counsel deposed and later testified in cross-examination that he did not bring a s. 276 application regarding this evidence as it would surely be rejected as raising a “twin myth” that the Complainant is less worth of belief because of the alleged prior sexual activity.
31When challenged as to the manner in which the evidence of the alleged touching by the Complainant would be admissible under s. 276, appellate counsel offered a new rationale; one not previously offered at trial, in the evidence of the Appellant in this appeal, or raised with trial counsel. Counsel contended that the evidence would be admissible as relevant to the Appellant’s right to full answer and defence as offering a motive to fabricate their account. It would demonstrate that the Complainant’s allegations arose from a desire for revenge for having their advances rejected.
32That rationale must be rejected for two reasons. First, counsel admitted that she had only conjured it up while delivering her argument on appeal. It was never raised before that moment. Neither the Crown nor trial counsel were offered the advance opportunity to respond to that novel theory. Second it is implausible, to say the least, to believe that the proposed evidence would pass the s. 276 screening process. At its heart remains the concern that it raises the second twin-myth, that the Complainant is less worthy of belief because of prior sexual conduct. That is even more the case when the twin-myth is applied to an eleven year old child.
33There is no question that the evidence, whether under the new rationale or the lack of rationale previously offered, fails the test of s. 276(2)(d). It lacks significant probative value. Any probative value that it has is outweighed by the danger of prejudice to the proper administration of justice in being premised on a twin-myth.
34Counsel offered evidence that he considered and decided against bringing a s. 276 application and for good reason. It would have been rejected. I add that he obtained instructions in that regard from the Appellant. In making his tactical decision not to bring a s. 276 motion, trial counsel was also informed by the failure of a s. 278 application for the release of the Complainant’s medical and counselling records.
35In sum, trial counsel’s choice not to bring a s. 276 application in the circumstances of this case was a reasonable and professional one.
4. Was trial counsel incompetent in failing to obtain an updated psychological report regarding the Appellant?
36Appellate counsel argue that trial counsel was incompetent in failing to obtain an updated psychological report for the Appellant. For that reason, he failed, in her words, to “introduce” the Appellant to the trial judge. While it is true that trial counsel did not order an updated psychological report regarding the Appellant, the relevance of that concern eludes me. I say that for two reasons.
37First, such a report would be relevant only to sentencing. Although the Notice of Appeal referred to a sentencing appeal, no arguments were raised in either the Appellant’s factum or oral arguments regarding sentence. That is a point raised by the Crown in its factum. Despite Crown counsel raising that point, no oral arguments were raised before me regarding sentence. As Crown counsel suggested, I take it that the sentence appeal is abandoned.
38Second, even though the Appellant suffers from ADHD, depression and Tourette Syndrome, there is nothing before me which indicates that those conditions affected his ability to fully participate at trial. Appellate counsel brought a motion to admit fresh evidence in the form of the report of neuropsychologist and clinical psychologist, Dr Teddy C.K. Cheung, dated September 22, 2025. There was no strong objection by the Crown to my reviewing that report (it even included it in its own appeal book).
39That being said, the report of Dr. Cheung completely undermines any arguments regarding any alleged failure by trial counsel to bring the Appellant’s mental health to the attention of the court. Dr. Cheung sets out that the Appellant has a history of ADHD, predominantly inattentive type, Tourette Syndrome and a learning disability regarding reading. Nonetheless, he found that:
The Appellant responded appropriately to inquiries;
The Appellant’s overall verbal comprehension skill fell in the Average range;
The Appellant’s overall language was within the average range;
The Appellant’s listening and expression skills were in the average range;
The Appellant’s condition did not adversely affect his ability to answer questions;
It is possible that he could be distracted by his ADHD when required to pay sustained attention over a long period of time.
The Appellant’s condition would not cause him to rush out an answer.
40With regard to the sixth point above, appellate counsel did not refer me to any instance in which the Appellant’s response to questions at trial demonstrated inattention.
41Accordingly, I reject the assertion that the failure to provide an updated psychological assessment would have affected any aspect of the trial.
Conclusion
42In considering all of the evidence and submissions proffered regarding trial counsel’s alleged ineffective or incompetent representation, including the fresh evidence put forward on behalf of the Appellant, I am not satisfied that he has met the high threshold for setting aside a verdict on the basis of ineffective assistance of counsel. I find no miscarriage of justice in the manner in which the Appellant’s trial was conducted by trial counsel or by the trial judge’s verdict.
43Trial counsel acted reasonably and professionally throughout. I reject the allegations of incompetence.
44Accordingly, I dismiss this appeal.
________________________ Kurz J.
Date: June 25, 2026
CITATION: A.A. v. Rex, 2026 ONSC 3747
COURT FILE NO.: YC-24-00000072-00AP
DATE: 2026-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
A.A.
– and –
His Majesty the King
REASONS FOR DECISION
Kurz J.
Released: June 25, 2026
Footnotes
- R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 1996 CanLII 937 (ON CA), 104 C.C.C. (3d) 353 (Ont. C.A.)
- Citing R. v. Girn (2019), 145 O.R. (3d) 420, [2019] O.J. No. 1264, 2019 ONCA 202, at para. 91
- Citing G.D.B. at para.29