CITATION: R. v. Callaghan, 2026 ONSC 4196
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. John Callaghan
BEFORE: Rees J.
COUNSEL: H. Kugathasan, for John Callaghan, Appellant
A.G. Zegouras, for HMTK, Respondent
HEARD: July 17, 2026 at Belleville
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code. These reasons have been anonymized and may be published.
Reasons for Decision
Overview
1This is a summary conviction appeal. The appellant was charged with two counts of sexual assault under s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown elected to proceed summarily before the Ontario Court of Justice. For reasons reported at R. v. Callaghan, 2025 ONCJ 722, the trial judge acquitted the appellant of the first count of sexual assault but convicted him on the second count.
2On the second count, the trial judge found that the complainant consented to vaginal intercourse without a condom, but the complainant made it clear to the appellant before and during sexual intercourse that she did not consent to the appellant ejaculating inside of her vagina. The trial judge found that the appellant was aware of the boundaries of the complainant’s consent. The trial judge found that the appellant took no steps to determine whether the complainant’s consent to internal ejaculation had changed. The trial judge expressly rejected that the appellant’s ejaculation was unintentional. The trial judge found that the appellant carried on as he wished and ignored the condition imposed by the complainant.
The appellant’s position
3The appellant accepts that the trial judge correctly stated the law of sexual assault. The appellant does not argue that the trial judge made any palpable and overriding error in his credibility assessment of the appellant. As clarified by counsel for the appellant at the hearing of the appeal, the sole ground of appeal is whether the trial judge misapprehended the appellant’s evidence that his ejaculation was unintentional, that the intercourse was quick, and that he announced to the complainant that he was ejaculating only as it was happening. This misapprehension, the appellant argues, affected the trial judge’s finding that the appellant had the necessary mens rea.
The law of misapprehension of evidence
4A misapprehension of evidence includes a failure to consider relevant evidence, a mistake about the substance of evidence, and a failure to give proper effect to evidence: R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109, at para. 108; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. Not every misapprehension of evidence will vitiate a finding of guilt. The nature and extent of the alleged misapprehension and its significance to the verdict rendered requires consideration in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial: Vant, at para. 108; Morrissey, at p. 541.
Analysis
5There is no merit to the sole ground of appeal.
6As the appellant acknowledged on appeal, the trial judge accurately summarized the appellant’s evidence in his reasons. This included the appellant’s testimony that he announced he was ejaculating at the same time as he did so. The trial judge expressly rejected the appellant’s evidence and accepted the evidence of the complainant.
7It was undisputed at trial that the complainant consented to unprotected vaginal intercourse with the appellant. But the complainant testified that she had conveyed to the appellant, both before and during sex, that she did not consent to the appellant ejaculating inside her vagina. The trial judge found the testimony of the complainant on this issue was credible, supported by the text conversations between the parties. The trial judge found that her lack of consent to ejaculation in her vagina was not only discussed on several occasions, but that the complainant stressed this was a significant concern for her. She had concerns about pregnancy, communicable diseases, and hygiene, and sometimes found it uncomfortable. The trial judge found that they discussed her lack of consent to ejaculation in her vagina in the days leading up to the intercourse and on the day of the intercourse. The trial judge found that the appellant was aware of the complainant’s concerns and her non-consent to him ejaculating in her vagina.
8Later in his reasons, the trial judge specifically turned his mind to the appellant’s evidence and rejected his evidence that his ejaculation was involuntary or unintentional. The appellant accepts that it was open to the trial judge to reject his evidence on this point. The trial judge found that this was not a situation where “the accused lacked physical control of when or where he ejaculated”. Rejecting the appellant’s evidence, he found that at the moment of ejaculation, the appellant “was in complete control”. The trial judge found that the appellant “chose to disregard [the complainant’s] concerns, her condition to proceeding as she did and stole from her the very essence of her sexual autonomy.”
9This finding was grounded in the evidence. The complainant testified that just before they started having intercourse, the appellant told her he wanted to “really fill me up with cum”, to which she told him no. The complainant testified that when they were having intercourse, they repositioned themselves so that the appellant was behind the complainant and he pushed her down by the small of her back. She testified he again asked to ejaculate inside her and she again said no. He then stated that he was ejaculating, without attempting to withdraw.
10The trial judge did not misapprehend the evidence. After assessing a witness’s credibility and reliability, a trial judge may believe all, some, or none of their evidence: R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 837. The trial judge’s rejection of the appellant’s account and the finding that the appellant’s ejaculation was intentional and not involuntary was open on the evidence. It is not for this court to reweigh the evidence on appeal.
Disposition
11Accordingly, the appeal is dismissed.
Justice Owen Rees
Date: July 20, 2026