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Criminal - Sex Offences - Evidence. R. v. T.U.
In R. v. T.U. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against a finding of "guilty, after trial by a jury, of one count of sexual interference contrary to s. 151 of the Criminal Code".
The court considers the propriety of a 'good character' evidence jury charge, here in this child sexual offence context:a. The Profit instruction in the context of a “semi-private” offence
[39] The Supreme Court in R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, observed that sexual abuse of children typically “occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality”: at p. 637. Indeed, a perpetrator’s positive reputation may shield them from allegations of child sexual abuse and aid them in perpetrating these offences. Therefore, while good character evidence may in some cases be used as a basis to infer that an accused is less likely to have committed a crime, this evidence carries diminished weight when it comes to allegations of child sexual abuse in private.
[40] Here, the appellant argues that the trial judge failed to instruct the jurors that, if they were to find that the sexual abuse allegation was in a “semi-private setting”, the diminished weight instruction from Profit should not apply.
[41] During the pre-charge conference, both defence counsel and the trial judge agreed that the issue of whether the allegations in this case were said to have occurred in a private setting was a factual finding for the jury to make.
[42] Defence counsel specifically raised the issue of “semi-private” sexual misconduct before the trial judge. Defence counsel cited R. v. Lizzi, (1996), 1996 CanLII 21269 (ON CTGD), 2 C.R. (5th) 95 (Ont. Gen. Div.) for the proposition that the Profit instruction does not apply to allegations of sexual misconduct in “semi-private” spaces and requested the jury charge reflect that.
[43] While the trial judge acknowledged that the Profit instruction in some of the cases appeared not to apply to allegations of sexual misconduct in public, she disagreed that there is a bright line rule against applying the Profit instruction to sexual offences in so-called “semi-private” settings. The trial judge found the jurisprudence “not consistent” on this point and declined to provide such an instruction.
[44] On appeal, the appellant again contends that the trial judge’s instruction was inadequate because it failed to explain that the diminished value Profit instruction did not apply if the allegations occurred in a “semi-private” space.
[45] Respectfully, I see no merit to this submission because I agree with the trial judge that there is no bright line rule that the Profit instruction is inapplicable because the offence occurs in a "semi-private" setting where others might be present or there is a risk of discovery. Like the trial judge, I do not read Lizzi, or other cases cited by the appellant (R. v. Khan, 2017 ONSC 7109, and R. v. Strong, 2001 CanLII 5957 (Ont. C.A.)) as suggesting a bright line rule. Rather the cases relied on by the appellant are applications of the “common sense” observation in Profit. Profit instructs that evidence of public reputation has little relevance to private conduct. The corollary is the more public the alleged conduct, the more relevant evidence about the way the accused tends to act in public may be.
[46] Contrary to the appellant’s submission, none of these cases hold that Profit is completely inapplicable just because the alleged offence occurs in circumstances where others are around or where there is a risk of discovery. The Profit instruction is not a binary rule that is either “on” or “off”.
[47] Rather, these cases turn on whether the kind of good character evidence adduced is relevant to the kind of offence alleged. Put another way, the probative value of good character evidence depends on the relationship between the type of character evidence and the circumstances of the alleged offence, not on a strict private/semi-private dichotomy. The appellant’s focus on private and semi-private conduct is misplaced because it does not account for the fact that whether an individual believes they are out of sight in a given environment can change in an instant. I adopt the following statement by Jenner J. in R. v. Foster, 2024 ONCJ 664 at para. 12: “the more significant issue with respect to the character evidence is not the location of the allegation, but the quality and nature of the evidence to begin with”.
[48] Evidence about how someone tends to act around their family could be probative of how that person may act at a family barbeque in circumstances where family members might be watching. It has little relevance to how that person might act when they are confident that no one is watching. When assessing the probative value of good character evidence, courts should also be mindful that reputation evidence may have diminished weight even in a non-private setting. There may be circumstances where a perpetrator relies on his reputation to shield himself from so-called misunderstood touching, even where that touching happens in a non-private space. In this case, the probative value of the good character evidence turned on a factual finding about how private the appellant believed the shed to be when the alleged offence occurred.
[49] Here, the evidence was mixed regarding the privacy of the swing allegation.[2] The complainant testified that she was alone in the shed with the appellant at the time of the swing allegation, and that there probably were not many other people around at the time. The complainant also testified that she told A.W. about the swing allegation either the same day it happened, or the next day, or close to the time of the incident. A.W. testified that the complainant told her about the swing allegation within 24 hours after a family barbeque held in the appellant’s house.
[50] The jury was properly instructed that it was open to them to accept the complainant’s evidence that she was alone with the complainant at the time of the swing allegation, and that it was also open to them to accept A.W.’s evidence about the timing of the disclosure, which suggested that other people were likely close by. In either case – even on A.W.’s version of events – it was open to the jury to decide how much weight to give the appellant’s good character evidence given their assessment of how relevant that good character evidence was to the kind of offence alleged.
[51] The question is simply: does the appellant’s good reputation in the eyes of his family say anything about the likelihood that he would commit the offence? If the jury accepted A.W.’s evidence that the offence occurred in circumstances where other family members were around, then the jury might have found that the good character evidence said a great deal about the appellant’s propensity to commit the alleged offence. They could find someone who is widely regarded by his family as a loving and caring grandfather is less likely to act in an anti-social way in circumstances where his family might see. On my reading, the jury charge adequately instructed the jury that this avenue of reasoning was open to them. Alternatively, it was also open to the jury to conclude that the good character evidence that the appellant was a loving and caring grandfather said little about his propensity to covertly lift the complainant’s bathing suit when he thought no one would see, even though others were close by. The jury charge left this avenue of reasoning open to the jury also.
[52] There was no need for an instruction that Profit has no application if the offence was “semi-private”, because the case law does not support this type of bright line distinction. The trial judge’s instruction sufficiently instructed the jurors on how to deal with the good character evidence in light of the positions of the parties and the evidence.
b. The Profit instruction and credibility
[53] The appellant also argues that the trial judge failed to properly distinguish the dual purposes of character evidence, i.e. propensity and credibility, and explain that the Profit instruction does not diminish the weight of good character evidence for the purpose of credibility.
[54] During the pre-charge conference, defence counsel emphasized the need to distinguish these two purposes of good character evidence. The trial judge agreed that “the jury needs to understand that there are these two aspects to good character evidence”, and included an instruction that, “in addition to making it less likely [the appellant] committed the offences alleged, evidence of good character may also make his evidence more worthy of belief.”
[55] However, defence counsel went further and argued that the jury must also be instructed that the diminished value from Profit applies only to the propensity purpose, and not to the credibility purpose. Defence counsel argued that the jury required an instruction that “[i]t’s only the propensity portion of it that has the ability to be impacted” and that the credibility purpose “is completely separate from any type of diminished value instruction.” The trial judge responded: “That I’m not sure about.”
[56] I reject this submission. As highlighted above, the trial judge specifically instructed the jury on the two separate purposes of good character evidence and told the jury it was open to them to find that evidence of the appellant’s good character may render him more worthy of belief. The trial judge specifically tied the Profit instruction to the propensity purpose only.
[57] Further, in cases where there is no credibility issue apart from the central sexual offence allegation, the credibility and propensity purposes of good character evidence can be “inextricably interwoven”: R. v. Flis (2006), 2006 CanLII 3263 (ON CA), 205 C.C.C. (3d) 384 (Ont. C.A.), at para. 52, leave to appeal refused, [2006] S.C.C.A. No. 120. This court has rejected the exact argument the appellant is making on appeal on this basis. For example, in R. v. B. (R.) (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), at para. 25, leave to appeal refused, 2006 CarswellOnt 920 (S.C.C.), the appellant argued that the trial judge erred in failing to instruct the jury that the credibility purpose of good character evidence is not diminished in cases of sexual misconduct, even where the propensity purpose is diminished. This court was not persuaded that this instruction was called for because “[t]here were no credibility issues in this case apart from the central sexual assault allegations. Thus, the two purposes for which good character evidence is admissible were largely inseparable”: at para. 28.
[58] Accordingly, I reject this ground of appeal. . R. v. E.O.
In R. v. E.O. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against the dismissal of a summary conviction appeal, this where the "appellant was convicted of two counts of sexual assault".
The court considered another difficult sex assault credibility-fabrication scenario, here compounded by issues of 'lack of embellishment':[2] In his appeal to the Superior Court of Justice, the appellant argued that the trial judge improperly bolstered the complainant’s credibility by reasoning that the complainant could have made more serious allegations and that this lack of embellishment made her allegations more likely to be true: R. v. Alisaleh, 2020 ONCA 597, at paras. 15-19; R. v. Kiss, 2018 ONCA 184, at paras. 52-53. The appellant further argued that the trial judge committed an additional error by using the complainant’s readiness to advance a criminal prosecution and endure the unpleasant rigours of a criminal trial as a reason to believe her evidence: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 87-92.
[3] In his reasons, the summary conviction appeal judge acknowledged these two potential problems with the trial judge’s reasons. The problematic wording appeared in the later portion of the trial judge’s reasons, where he was rejecting any suggestion that the complainant had a motive to fabricate the allegations. The trial judge had taken the appellant’s denial of the sexual assault allegations as an implied accusation that the complainant had fabricated the incidents of slapping. The summary conviction appeal judge appears to have accepted that this portion of the reasons could be interpreted as showing that:(1) The trial judge considered the lack of embellishment in the complainant’s allegations as bolstering her credibility; and
(2) The trial judge reasoned that the complainant was more credible because she exposed herself to the unpleasant rigours of a criminal trial, where she risked being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments. [4] After noting these two potential problems, the summary conviction appeal judge, however, went on to dismiss the appeal. He explained that the trial judge’s use of the complainant’s lack of embellishment and of the fact that the complainant subjected herself to the unpleasantness of having to testify about consensual intimate moments did not “overcome the deference that findings of credibility by the trial judge are entitled to in the circumstances of this case.” The lack of embellishment was not, in the summary conviction appeal judge’s view, used as a “makeweight in the trial judge’s credibility analysis.”
[5] In this court, the appellant argues that the two potential problems identified and then discarded by the summary conviction appeal judge were akin to the errors identified in Alisaleh and J.C. and therefore constituted errors of law. Absent the application of the curative proviso, the errors should have resulted in an order for a new trial. The appellant argues that the summary conviction appeal judge therefore erred in dismissing the appeal without resorting to the curative proviso. Had the summary conviction appeal judge considered the test for applying the curative proviso, he would have concluded that the Crown could not meet its high burden of showing that, notwithstanding the legal errors, the verdict was inevitable.
[6] I would dismiss the appeal. As I will explain, the concerns identified by the summary conviction appeal judge with respect to the trial judge’s reasons did not constitute errors of law. The summary conviction appeal judge properly dismissed the appeal.
[7] I start with a review of the trial judge’s reasons. The trial judge correctly instructed himself on the law, including the burden of proof and the R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 framework. He then explained why he found the complainant to be credible and why he rejected the appellant’s evidence. The trial judge noted that the complainant readily acknowledged gaps in her memory and took care to testify accurately. She was not shaken on cross-examination. The trial judge also observed that the complainant did not embellish her evidence.
[8] After making the appropriate credibility findings, perhaps out of an abundance of caution, the trial judge went on to consider and reject any suggestion that the complainant’s allegations were a fabrication. It is in the trial judge’s discussion and rejection of any motive to fabricate by the complainant that the impugned passage is found. It reads as follows:In my view, if the complainant’s allegations are a fabrication, she would have come up with a better story than that which she testified. If the complainant wanted to make up false allegations against the accused, would she come up with a version that has her saying nothing to him about slapping her on the second occasion despite what she told him during the first incident. Would she come up with a fabrication that these events took place during consensual sex and foreplay? I think not. Why wouldn’t she simply accuse him of slapping her during an argument? Why risk being scrutinized and perhaps humiliated in a public forum by having to testify about consensual intimate moments? [9] Before the summary conviction appeal judge, and again in this court, the appellant argued that this paragraph shows that the trial judge used the complainant’s lack of embellishment and the fact that the complainant exposed herself to having to testify about consensual intimate moments to bolster her credibility. The appellant argued that such reasoning constituted errors of law under Alisaleh and J.C.
[10] Before turning to how the summary conviction appeal judge dealt with these issues, I observe that, in the impugned passage, the trial judge does not explicitly mention embellishment or exaggeration. Further, although the trial judge’s formulation is perhaps unfortunate, I do not view it as alluding to a lack of embellishment or exaggeration. Rather, the trial judge explains that if the complainant had been fabricating the allegations, she would have fabricated different allegations which did not occur during consensual sexual activity. In other words, the trial judge is simply assessing the plausibility of the complainant’s testimony in response to the suggestion that the appellant’s denial amounted to an allegation that the complainant fabricated her evidence.
[11] Even if the passage were to be read as a reference to the complainant not having embellished her evidence, as this court explained in Kiss, at paras. 52-53, there is nothing wrong with noting the fact that a witness did not embellish their evidence in a way that would compromise their credibility, so long as the lack of embellishment is not inappropriately taken as adding to the witness’s credibility. Read in context of the reasons as a whole, I am satisfied that, to the extent the passage could be read as a reference to the lack of embellishment, the trial judge considered it only with respect to whether the complainant had a motive to lie. It is well settled that the lack of embellishment may be considered for that purpose: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5.
[12] As for the suggestion that the paragraph shows that the trial judge committed a J.C. error by finding the complainant more credible because she chose to pursue a complaint and subject herself to the unpleasant rigours of a criminal trial, I note that this is not what the paragraph says. The trial judge’s comments were with respect to what the allegations were, not with respect to the fact that the complainant made and pursued allegations. In other words, the trial judge was not commenting on the fact that the complainant was prepared to testify, but on the fact that the complainant testified about consensual intimate moments. The trial judge queried why, if the complainant were to fabricate allegations of non-consensual slapping, she would have them occur in circumstances such as these, where she would risk being scrutinized and humiliated by having to testify “about consensual intimate moments”. The trial judge was simply commenting on the plausibility of the complainant’s narrative.
[13] In any event, to the extent that there is ambiguity as to what the trial judge intended in this passage and that a possible alternate reading of the impugned passage would reflect improper reasoning by the trial judge, I note that, as the Supreme Court of Canada explained in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 74, trial judges are presumed to know the law. Where a trial judge’s reasons are open to multiple interpretations, a reading that is consistent with this presumption must be preferred over one that suggests that the trial judge erred: G.F., at para. 79. Credibility findings deserve particular deference: G.F., at para. 81. Credibility findings must be assessed in light of the presumption of the correct application of the law: G.F., at para. 82. A trial judge’s reasons must be read generously, as a whole, in light of this presumption: Gerrard, at para. 2.
[14] I turn now to the summary conviction appeal judge’s reasons and the issues raised in this court. As I have said above, the summary conviction appeal judge was correct in finding that the trial judge did not commit a legal error. I acknowledge, however, that at one point in his reasons, the summary conviction appeal judge appears to have accepted that the trial judge committed the Alisaleh and J.C. errors. The summary conviction appeal judge explained that “the trial judge does appear to have articulated improper reasoning as enhancing the complainant’s credibility” (emphasis added). However, in the end, the summary conviction appeal judge concluded that “[o]n reading the trial judge’s Reasons for Judgment as a whole, it is apparent that the complainant, [in the trial judge’s view], was entirely credible without enhancing her credibility by improperly relying upon her lack of embellishment. Her credibility had been firmly established in his view.”
[15] Although the summary conviction appeal judge’s analysis for dismissing the appeal could have been expressed more clearly, when it is read in context, and in light of the trial judge’s reasons read as a whole, it is apparent that contrary to what the appellant argues, he did not accept that an Alisaleh or a J.C. error was committed. He correctly concluded that the trial judge had not erred. As no legal error was found, there was no need to apply the curative proviso.
[16] In conclusion, the summary conviction appeal judge correctly determined that the credibility findings were clearly made by the trial judge quite independently from the analysis he carried out in the impugned portion of the reasons. The concerning paragraph did not, as the appellant suggests, reference the complainant’s lack of embellishment of her allegations and, to the extent that the paragraph can be read as referencing the lack of embellishment, it was not used as a makeweight in favour of the complainant’s credibility contrary to the principles outlined in Alisaleh. Nor did the paragraph denote that the trial judge found the complainant more credible because she exposed herself to the unpleasant rigours of a criminal trial. The trial judge did not use the fact that the complainant was willing to endure the trial as a reason to reject any suggestion that she had a motive to fabricate. The summary conviction appeal judge was correct in finding that the trial judge committed no errors of law and there was no need to apply the curative proviso. . R. v. Vannoordennen
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
The court considered the complainants' history of counselling, here as an oath-helping issue:Counselling as Oath-Helping
[44] The appellant submits that the trial judge erred in relying on the fact that both complainants attended counselling as a result of the appellant’s offending against them. Near the end of her reasons, the trial judge said the following:Both men have received counselling. Their mother confirmed this, and clearly the accused was aware that [J.H.] was seeing [J.H.’s psychiatrist]. It is difficult to understand why they would seek counselling without a compelling reason. [45] The appellant submits that reliance on the counselling evidence amounted to improper oath-helping. The Crown submits that the use of this evidence was appropriate, and in line with this court’s decision in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 43, in which Fairburn A.C.J.O. said: “a complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant.”
[46] The Crown acknowledges that, while attendance at counselling in the present case does not amount to evidence of “emotional disintegration”, “common sense and human experience permit an inference that counselling was undertaken to address a traumatic experience, such as the confusion, depression and guilt that the victims said resulted from the [a]ppellant’s abuse.”
[47] In evaluating this issue, I note that there was a good deal of evidence about the complainants’ attendance at counselling. They both explained why they sought counselling. They claimed that it was related to their experiences with the appellant. No objection was taken by the appellant’s trial counsel to the admission of this evidence. It was relevant to the narrative of events. And I would note that the Crown did not ask the trial judge to draw the inference that seeking counselling enhanced the credibility of the complainants.
[48] I agree with the appellant that the situation in this case was much different than in A.J.K. The concern is that the trial judge reasoned that, because the brothers went to counselling, it must be true that the appellant abused them. Although I am concerned with the trial judge’s use of this evidence without any further explanation, this was only one factor that she relied upon in her assessment of the credibility of each of the complainants. It was unnecessary and added nothing to her assessment of their evidence. The trial judge would have reached the same conclusions about the respective credibility of the complainants in any event: see R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at para. 55; A.J.K., at para. 42.
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