“The trial judge failed to recognize that the appellant’s intellectual disability attenuated his moral blameworthiness even though it did not prevent him from understanding the consequences of his behaviour entirely,” wrote Justice Darla Wilson in the ruling, R. v. Storey, 2025 ONCA 599, agreed to by Associate Chief Justice Michal Fairburn and Justice Benjamin Zarnett.
“As well, the trial judge refused to account for the harsh conditions of COVID-19 at sentencing, finding that the appellant would have been incarcerated during the pandemic no matter what. Both of those conclusions reflect errors in principle,” the judge wrote.
As Justice Wilson outlined in her ruling, the charges of sexual interference and assault arose from the appellant’s relationship with one complainant, H.W. There were also charges of child pornography and making sexually explicit material available to a child that arose from a relationship over social media with another complainant, A.D.
The appellant, now 30, was 21 years old at the time he met the first complainant, H.W., who was 13 years old and in Grade 8 in the fall of 2016. They had sexual relations about a month after they first met, despite H.W. asserting that Storey knew her age, which he denied.
In early December 2016, the two had a fight and the appellant injured H.W. Her mother took her to the police. During the investigation, Storey told them that he had a sexual relationship with the girl. He was arrested on Dec. 6, 2016.
The second complainant, A.D., was a friend of H.W.’s. Storey sent A.D. — who was 13 years old at the time — a picture of his erect penis and she sent him nude photos of herself, which he downloaded to his computer. Storey was arrested on Jan. 4, 2017, on the charges related to A.D.
At Storey’s trial, his defence counsel provided evidence from a forensic and clinical psychologist who stated that he had an intellectual disability “in the mild to moderate range” and has an IQ of 50, which is below the 0.1 percentile, which could “impact his ability to understand legal concepts, legal rights, and legal advice,” as Justice Wilson summarized in her ruling.
However, she noted that following Storey’s 2020 trial, Ontario Superior Court Justice Clyde Smith held that the appellant satisfied the “operating mind” aspect of the test to determine whether the statements he provided to the police were voluntary as set out in the test outlined by the Supreme Court of Canada in R. v. Whittle, [1994] 2 S.C.R. 914.
The appellate court determined that Justice Smith did not err in admitting Storey’s statements and did not improperly ignore the psychologist’s evidence, as the appellant argued, since he was “entitled to accept all, some, or none” of it.
“The trial judge correctly set out the test for an ‘operating mind’ as described in Whittle, and endorsed by the Supreme Court as recently as R. v. Tessier, 2022 SCC 35. … That test requires the Crown to prove, beyond a reasonable doubt, that the accused possessed the limited cognitive ability to: (a) understand what they were saying and (b) to comprehend that their statement might be used as evidence against them,” Justice Wilson wrote in her decision.
She also held that Justice Smith did not “ignore the appellant’s disability,” as his counsel contended, because he “pointed out” that Storey “was aware that criminal consequences could follow from sex with underage girls.”
The Court of Appeal upheld the appellant’s conviction but expressed concern over the six-year penitentiary sentence, less 12 months’ credit for restrictive bail conditions that he received from Justice Smith in his ruling, R. v. Storey, 2021 ONSC 1760.
Justice Wilson said that she agreed with the appellant’s counsel that the trial judge committed two errors in principle.
First, that Justice Smith “applied the wrong test to assess the impact of the appellant’s disability on his moral blameworthiness” and “incorrectly confined the inquiry into whether the appellant’s disability made him unaware of the consequences of his actions,” rather than focusing on whether Storey’s disability played “a role in his criminal conduct,” as Justice Wilson summarized.
The appellant’s counsel also said that the trial judge erred by “refusing to consider the impact of COVID-19 on the basis that no proportionate sentence could keep the appellant out of jail entirely during the pandemic.”
As Justice Wilson wrote in her reasons, “an offender’s intellectual disability can remain relevant to their moral blameworthiness even if it does not leave them unaware of the consequences of their actions. The trial judge erred in principle by confining his inquiry to the latter point.”
“He also erred in principle by refusing to consider COVID-19 simply because the appellant would be incarcerated during the pandemic regardless,” she wrote.
Justice Smith “treated the inquiry as exhausted by whether the appellant’s limitations prevented him from understanding the potential consequences of his actions,” added Justice Wilson.
“An appreciation of the potential consequences of one’s actions does not end the moral blameworthiness inquiry. The evidence on which the trial judge relied showed that the appellant understood that it was wrong to have sex with children, and that legal consequences might flow from doing so. The evidence did not demonstrate that the appellant’s limitations played no role in his criminality,” she wrote in her ruling.
“The trial judge’s analysis appeared to conflate the relevant sentencing question with issues that would be addressed under a [Criminal Code] s. 16 inquiry into whether an accused is criminally responsible. That was an error in principle, foreclosing further analysis of how the appellant’s cognitive challenges might have attenuated his moral blameworthiness,” said Justice Wilson, who added that the “error impacted the sentence,” which she noted “must recognize the mitigating factor of his attenuated moral responsibility.”
She wrote that “the appellant’s inability to understand the nuances of his wrongdoing as a result of his cognitive limitations attenuates his moral blameworthiness.”
“In the unusual circumstances of this case, a 4.5-year sentence would recognize the gravity of the offence and the significant blameworthiness in knowing that it is wrong to have a sexual relationship with a child, yet pressing on anyway. But it also recognizes that someone in the appellant’s position is less morally blameworthy for doing so, a diminished moral blameworthiness that is clear on the record, including in his statements to the police,” wrote Justice Wilson, who added that she would “further decrease that sentence to account for” what she described as “the harsh conditions of incarceration during the COVID-19 pandemic” with a three-month credit.
“Those conditions represent a collateral consequence that can entitle an offender to a reduction in the quantum of their sentence,” wrote Justice Wilson, referring to the court’s previous rulings in R. v. Stephens, 2024 ONCA 793 and R. v. Marshall, 2021 ONCA 344.
“That reduction does not become unavailable just because it would allow the offender to entirely avoid incarceration during the pandemic. By concluding otherwise, the trial judge erred in principle, and that error in principle plainly impacted the sentence.”
Michael Spratt, AGP LLP
“The other unfortunate reality is that conditions in jail — especially during COVID — are dreadful and close to unimaginable,” which Spratt said the courts have acknowledged when sentencing offenders.
He noted that regarding the latter, when it concerns those with cognitive limitations, the Court of Appeal said that “courts examine the extent to which those limitations contributed to the conduct in question, and the impact of that contribution on the appropriate sentence.”
Spratt said the appellate court decision serves as “a good reminder to trial courts that even when someone knows something is wrong, you still need to look past the cover of the book and into the context. You can’t judge every accused on the same standard, and sentencing is certainly not a one-size-fits-all exercise.”
Storey’s appeal lawyers were unavailable for interview.
Crown counsel Jennifer Epstein declined to comment.