CITATION: R. v. Schaefer, 2026 ONSC 4535
COURT FILE NO.: SCA 101912
DATE: 2026/08/06
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
TYLER SCHAEFER
Appellant
A. Thibert, Counsel for the Respondent
J. Drexler, Counsel for the Appellant
HEARD: March 25, 2026
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information
that may identify the persons described in this judgment as the complainants may
not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
McArthur J.
reasons for decision
Introduction
[1] After a trial in the Ontario Court of Justice at Kitchener, the appellant was found guilty of one of four allegations contained in a single count of sexual assault.
[2] The appellant appeals on the basis that the trial judge erred when she misapprehended the evidence in rejecting the appellant’s evidence on what occurred in relation to the shed incident.
[3] The appellant’s main argument is that the judge misapprehended the evidence on the order of who entered the shed and this has significant ramifications for the trial judge’s reasoning that the non-consensual sexual touching happened. In essence, the defence argues that if appellant as alleged was in the shed first, this renders the complainant’s entire story of the sexual touching impossible or, at least unlikely and, therefore, this amounts to a misapprehension on the evidence of entering the shed that renders the result incorrect.
[4] The Crown submits the appeal be dismissed, there was no misapprehension of evidence by the trial judge and that the trial judge was entitled to make the factual finding on the point on the evidence that she accepted that was predicated on the evidence of four witnesses that she considered into the context of other evidence in the case.
[5] For the following reasons, the appeal will be dismissed.
The Standards of Appellate Review
General law
[6] The standard of review on appeal on a question of law is correctness. On a question of fact, the standard is palpable and overriding error.
[7] For questions of facts, the standard of review is, firstly, whether the judge made a palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inference from those factual findings.
[8] With respect to a mixed question of fact and law involving a trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error.
[9] If the mixed question of fact and law involves a trial judge’s interpretation of a legal standard, the error must then constitute an error in law and is therefore subject to the standard of correctness.
[10] An appellate court should grant an appeal of a trial judge’s decision if:
a. It cannot be supported on the evidence;
b. It is clearly wrong in law;
c. It is clearly unreasonable; or
d. There was a miscarriage of justice.
See R. v. Rivera, 2011 ONSC 255 at para. 32
Misapprehension of Evidence
[11] A misapprehension of evidence is either 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 R. v. Morrisey, 1995 CanLII 2498 (ON CA) page 36.
[12] Even if a misapprehension of evidence is identified, it must be shown that it goes to the substance of the judgment rather than to mere detail and must be material rather than peripheral to the reasoning of the trial judge. See R. v. Lohrer, 2004 SCC 80.
[13] The standard of review for findings of fact is such that a finding of fact cannot be reversed unless it is established that the trial judge made a palpable and overriding error. Accordingly, findings of fact made by the trial judge are to be shown deference. Since the trial judge is in a privileged and favorable position to assess the credibility of witnesses’ testimony at trial and determine factual matters. See Housen v. Nikolaisen, 2002 SCC 33.
Analysis and Findings
[14] The appellant was found guilty of touching the complainant without her consent in the shed. All witnesses at trial testified and agreed that the appellant and complainant were both physically present in the shed, together, at some point.
[15] This court need not go into a detailed outline of all of the evidence and testimony of the witnesses in this case.
[16] This court observes and finds the trial judge’s reasons do not hinge on the ordering of who entered the shed. At page 2 of the reasons for judgment, the trial judge states, “Later in the night, when the parties were in the backyard shed, Ms. S alleges that Mr. Schaefer grabbed her breast from behind.” The trial judge later concluded “I find that Mr. Schaefer grabbed Ms. S’s breast, as alleged, while the two were in the shed.”
[17] This court observes on the evidence presented overall in the case that the order of persons entering the shed was inconsequential to the result. The trial judge need not parse every disagreement between the party’s versions of events. Various possibilities existed from and on the the evidence. As clear from the testimony of the witnesses, this “shed” was a large structure with room to move around inside.
[18] On the evidence overall, there is no reason why the order of entering the shed would automatically determine the result. In this context, the two conclusions are not mutually exclusive. Furthermore, the trial judge is entitled to accept all, none or some of any witness’s evidence: R. v. S.H., 2011 ONCA 215.
[19] There is agreement on the evidence that there was a touch and then the complainant kneed appellant in the groin. Both parties sought to explain this reaction by the complainant. In this case, the complainant testified she did this because appellant touched her breast. The appellant testified he tapped the complainant on the shoulder in order to leave the shed after she entered.
[20] In this case, only the appellant’s version of events relies on the order of entering the shed; the appellant’s version relies on the complainant entering after him because she was flirting with him and, with him wanting to immediately leave and her taking this as rejection to explain the reaction of, her kneeing him in the groin.
[21] The trial judge recognized this when she concluded in her reasons for judgment “I also do not accept Mr. Schaefer’s evidence that he was in the shed before Ms. S entered. This is significant because he testified that he sought to leave the shed as soon as Ms. Schmidt entered, and it is in this context that he tapped her on the shoulder to get by.”
[22] The trial judge rejected this evidence in preference of the evidence of Ms. S, Mr. Shipley, and Mr. Hogancamp on this point. This court observes that the trial judge is entitled to parse the evidence in this way and come to this finding on the evidence in this case.
[23] By way of additional example, the trial judge accepted Mr. Shipley’s evidence on this point despite his credibility and reliability issues because he was smoking crack in the shed and resiled in his testimony on that point. It is entirely possible that Mr. Shipley did not want to admit to personally smoking crack in the shed but knew who was in the shed and the order in which they entered. Furthermore, Mr. Hogancamp, as a defence witness, also testified that the complainant entered before the appellant as the trial judge noted in her reasons.
[24] In this case, the complainant’s version of events did not depend on the appellant already being in the shed when she entered. It is obvious to this court that the order of entering the shed is not an essential part in accepting the complainant’s testimony that the appellant touched her breast.
[25] The trial judge recognized this in her rejecting the order of entering the shed which meant rejecting Tyler’s story and then proceeded to assess the complainant’s evidence. After rejecting the defendant’s explanation of the shed incident, the trial judge then stated, “I turn then to consider whether the Crown has proven the breast grabbing incident beyond a reasonable doubt on the basis of the Crown’s evidence.” Therefore, the breast grabbing is a separate issue to the order of entering the shed.
[26] In view of the trial judge’s findings, the ordering of entry of the parties in the shed was not an essential component of the complainant’s story. Accordingly, this cannot amount to a misapprehension since it was not evidence that was essential to the result. Even if it was, the judge gave her reasons for rejecting appellant’s evidence on that point in preference to the other witnesses.
[27] As is well-known, it is not an error for a trial judge to accept some parts of witness’s evidence and not others. This court finds that the trial judge neither failed to consider evidence relevant to a material issue, made a mistake as to the substance of the evidence nor failed to give proper effect to evidence.
Conclusions
[28] This court finds that the trial judge did not misapprehend the evidence as submitted by the appellant nor err accordingly.
[29] Based in these findings, the appeal by the appellant is dismissed.
___________________________________
M.D. McArthur J.
Released: August 6, 2026
CITATION: R. v. Schaefer, 2026 ONSC 4535
COURT FILE NO.: SCA 101912
DATE: 2026/08/06
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HIS MAJESTY THE KING
Appellant
– and –
TYLER SCHAEFER
Respondent
REASONS FOR Decision
M.D. McArthur J.
Released: August 6, 2026