Background
Kenneth Lillico was convicted of sexual interference contrary to s. 151 of the Criminal Code following a trial in the Ontario Court of Justice before Justice Jeffery R. Richardson, with convictions entered on February 15, 2023. He was subsequently sentenced to five years’ incarceration on January 14, 2025. Lillico appealed both his conviction and sought leave to appeal his sentence.
The sole witness at trial was the complainant, who testified that Lillico sexually assaulted her on two occasions between 2001 and 2003, when she was under the age of 14 and Lillico was between 31 and 33 years old. On the first occasion he kissed her and pulled back; on the second, he kissed her and proceeded to have vaginal intercourse with her. The legal age of consent at the time was 14, and the trial judge found the complainant was incapable of consenting given her age. The trial judge also found no evidence that Lillico took reasonable steps to ascertain the complainant’s age, and no air of reality to a defence under s. 150.1(4) of the Criminal Code.
On appeal, Lillico argued that the trial judge erred in assessing the complainant’s credibility and in treating inconsistencies in her testimony. The sentence appeal was bifurcated from the conviction appeal by agreement of the parties, to allow for exploration of Legal Aid funding; it was directed to be spoken to at the September 2026 inmate sittings.
The Court’s Holding
The Court of Appeal, comprising Justices George, Monahan, and Pomerance, dismissed the conviction appeal. The court reaffirmed the well-established principle that a trial judge’s credibility assessments attract particular deference on appeal, citing R. v. G.F., 2021 SCC 20, and R. v. Kruk, 2024 SCC 7.
The court found that although Lillico disputed the trial judge’s findings regarding the complainant’s credibility, he failed to identify any reviewable error in those findings. Without an identifiable error, there was no basis to interfere with the conviction. The sentence appeal was severed and adjourned to the September 2026 inmate sittings. The decision was rendered orally on June 3, 2026.
Key Takeaways
- Appellate courts will not disturb a trial judge’s credibility findings unless a reviewable legal error is identified — mere disagreement with the assessment is insufficient.
- Under the law in force at the time of the offences (2001–2003), the age of consent was 14; a complainant below that age was legally incapable of consenting, and the accused bore an obligation to take reasonable steps to ascertain age.
- The sentence appeal was bifurcated to allow the appellant to seek Legal Aid funding, illustrating the court’s willingness to manage complex appeals procedurally to protect access to justice.
Why It Matters
This decision reinforces the high bar appellants face when challenging credibility findings on appeal. Following R. v. G.F. and R. v. Kruk, the Court of Appeal signals continued strict adherence to the deference standard: pointing to inconsistencies in a complainant’s testimony is not enough — counsel must pinpoint a specific legal or logical error in the trial judge’s reasoning.
The case also serves as a reminder that historical sexual offences involving child complainants remain actively prosecuted and upheld decades after the fact, and that the reasonable-steps defence to a mistaken belief in age requires an evidentiary foundation before it can even be put to the trier of fact.