Background
T.B. and the complainant, E.N., were in a domestic relationship and lived together from the summer of 2021. E.N. testified that the appellant became physically abusive shortly after they moved in together, and that the relationship was marked by pervasive violence, drug use, and sex work. On May 15, 2023, E.N. fled the shared apartment, breaking her foot in the process, and was subsequently treated at hospital where she gave a police statement two days later.
T.B. was charged with eleven assault-related offences spanning three time periods in November 2022, December 2022, and May 2023. Following a three-day trial in the Ontario Court of Justice, the trial judge acquitted T.B. of two charges — the December 2022 sexual assault (based on concerns about recovered memory) and one assault-with-a-weapon count — while convicting him of the remaining nine offences, including the May 2023 sexual assault.
T.B. appealed only his conviction for the May 2023 sexual assault, the charge carrying the longest sentence. He argued that the trial judge failed to resolve material credibility and reliability concerns about E.N.’s testimony and misapprehended material evidence by misattributing her admission about embarrassment versus failed memory to the wrong count.
The Court’s Holding
The Court of Appeal, per Madsen J.A. (Gillese and Dawe JJ.A. concurring), dismissed the appeal. The court held that the trial judge’s split verdicts were logically coherent and that there was a rational basis for treating the reliability concerns differently as between the two sexual assault counts. The May 2023 sexual assault was largely corroborated by E.N.’s contemporaneous police statement made just days after the incident, whereas the December 2022 sexual assault was entirely sourced from a recovered memory not disclosed until a trial preparation meeting in February 2024. The trial judge was entitled to accept E.N.’s evidence on one count while acquitting on the other.
On the misapprehension ground, the court acknowledged that the trial judge incorrectly attributed E.N.’s admission — that she claimed embarrassment rather than admitting she had forgotten the anal intercourse detail — to the December 2022 count when it in fact concerned the May 2023 count. However, the court found this error did not play an essential part in the reasoning that led to the conviction. The charge of sexual assault was not particularized to require proof of anal intercourse, so even had the trial judge doubted E.N.’s recovered-memory clarification about that specific detail, the core allegation of non-consensual sexual activity during the May 2023 incident was separately established.
Key Takeaways
- A trier of fact may convict on one count while acquitting on a related count where there are objectively distinguishable reliability concerns — here, the presence or absence of contemporaneous disclosure was a meaningful differentiator.
- A trial judge’s misattribution of evidence to the wrong count will not warrant appellate intervention unless the error played an essential part in the reasoning process leading to the conviction: R. v. Morrissey (1995), 22 O.R. (3d) 514.
- Where a sexual assault charge is not particularized as to a specific act, the Crown need not prove that specific act beyond a reasonable doubt; doubt about one recovered-memory detail does not undermine conviction on the broader charge.
- Appellate courts must read trial reasons as a whole and in context, reading between the lines of oral judgments rather than parsing them line by line for error: R. v. G.F., 2021 SCC 20; R. v. Ouellet, 2025 SCC 40.
Why It Matters
This decision reinforces the considerable deference appellate courts afford to trial judges who deliver detailed oral reasons in complex credibility cases. It clarifies that split verdicts across related domestic violence charges are not inherently inconsistent where there are objectively distinguishable evidentiary bases — particularly the timing and circumstances of a complainant’s disclosures. Counsel in domestic violence prosecutions should note how the court drew a sharp line between allegations partially corroborated by contemporaneous statements and those resting entirely on recovered memories disclosed years after the fact.
The case also offers a practical illustration of the limits of the misapprehension-of-evidence ground of appeal. Even a conceded factual error by the trial judge will not ground appellate intervention unless it is shown to have been load-bearing in the conviction analysis — a high bar that the appellant here could not meet given that the trial judge made three separate, unequivocal findings accepting E.N.’s account of the May 2023 sexual assault.