WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rose, 2021 ONCA 408

DATE: 20210611

DOCKET: C66594

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Rose

Appellant

K.Y. Tina Yuen, for the appellant

Avene Derwa, for the respondent

Heard: December 11, 2020 by video conference

On appeal from the conviction entered on August 29, 2018 by
    Justice David L. Corbett of the Superior Court of Justice.

Jamal J.A.:

OVERVIEW

[1]

The appellant, Alexander Rose, appeals his conviction of sexual assault.
    The only issue
at trial
was consent. The
    appellant testified that his sexual encounter with the complainant was
    consensual, while the complainant testified that the appellant forced himself
    upon her. The case turned on credibility.

[2]

The trial judge determined that he simply did not believe a word of
    what [the appellant] had to say where it differed from the complainants
    version of events. He also concluded that the complainants version of events
    was probably true and that probably the events happened as she described
    them. But he highlighted certain issues with her evidence that led him to
    conclude it would be unsafe to base a conviction on her evidence alone.

[3]

Even so, the
trial judge was convinced
    of the appellants guilt based on the complainants post-event demeanour as
    seen in about 30 minutes of video surveillance footage from the appellants
    condo building. The video footage showed the complainant in a highly distraught
    emotional condition just after the alleged assault. The trial judge found this post-event
    demeanour evidence powerfully corroborative of the complainants evidence. He
    ruled that the corroboration provided by the video surveillance evidence [was]
    more than enough to satisfy [him] beyond a reasonable doubt of the truth of the
    complainants account of events.

[4]

The appellant now appeals his conviction. He asserts that the trial
    judge erred in evaluating the complainants post-event demeanour, rendered an
    unreasonable verdict, and improperly assessed the evidence.
For the reasons that
follow, I would dismiss the
    appeal.

BACKGROUND FACTS

[5]

The facts were largely uncontested, except on the key issue of consent.

[6]

In May 2016, the appellant, then aged 22, and the complainant, then aged
    20, met at Yorkdale Mall in Toronto. The appellant was shopping with his friend
    Jordan for Jordans birthday. Jordan noticed the complainant in one of the
    stores and asked for her opinion on some shoes. The complainant then went shoe
    shopping with Jordan and the appellant. Before they parted, Jordan asked the
    complainant for her phone number and she gave it to him.

[7]

The complainant and Jordan texted each other over the next few days. A week
    later, the complainant invited Jordan to her place where they had consensual
    sex. Jordan then went to the airport to catch a flight to the Dominican Republic.
    When he returned a week later, he and the complainant arranged a date. They were
    to meet in Jordans area and would then go to a restaurant or bar.

[8]

On the evening of May 15, 2016, the complainant arrived at what she
    thought was Jordans condo building (it was actually the appellants condo).
    She was recorded on the condo buildings video surveillance camera as she
    waited for about 10 minutes in the downstairs lobby for Jordan to come down. When
    Jordan came down, he told her he had forgotten something, so they went upstairs
    to get it. The appellant was in the condo. He gave the complainant a rum and
    coke while Jordan went to the bedroom to get what he had forgotten. When Jordan
    returned, the three
of them
chatted and
    watched television. A few minutes later, Jordan and the complainant went to the
    bedroom and had consensual sex.

[9]

Jordan, who was naked, then left the bedroom and the appellant came in
    to look for something. The complainant was sitting on the bed, partially
    undressed with her chest exposed. The appellant then left and Jordan returned,
    still naked. The complainant said this happened a few times. She found this
    strange and told them it was weird. She testified that, after Jordan left
    again, the appellant approached her on the bed. The appellant complimented her
    breasts and told her he wanted to see them, to which she said, No. He then tried
    to reach down the top of her dress. She told him to stop and pushed his hand
    away. The complainant testified that at this point the appellant was effectively
    blocking her from getting up or going around him.

[10]

According
    to the complainant, the appellant remarked that she was shy and asked whether another
    drink would make her less shy. She said she guessed so. The appellant left the
    room to get more rum, returned, and refilled her drink. He then said, Show me
    your dome skills, a request for oral sex. She said no. The appellant then left
    the room again, returned with a condom, and put it on. He got on top of her and
    told her to Relax. Relax, and then said, Whats the big deal? You have two
    good looking guys here. She told him, No. Like stop. She tried to kick him
    off. But he held her hands down and penetrated her vagina. He asked her to turn
    around but she said [n]o. When her hands freed, she pushed him off her, and
    he left the room.

[11]

The complainant
    testified that Jordan then returned to the bedroom and told the complainant
that
she had just had a threesome. She felt insulted
but said nothing
. The appellant and Jordan
    then announced that they were going to a nightclub but did not invite the
    complainant. She got dressed and the three
of them
left
    the condo together. All three were videotaped by the condo video surveillance camera
    in the elevator as they went down. The complainant said goodbye to Jordan and
    gave him a hug. She did not say goodbye to the appellant. When they got
    downstairs, Jordan and the appellant showed the complainant the way to the
    lobby before going to the parking garage for their night out. The complainant then
    called an Uber, which arrived about 30 minutes later and took her home. The
    complainant was recorded by the condo video surveillance camera as she waited
    for the Uber in the lobby.

[12]

As the
    complainant waited in the lobby, she called her ex-boyfriend, J.F., but did not
    reach him. She also called two close friends, one of whom later testified that
    the complainant called him and told him
that
she
    had been raped by her dates friend. That friend testified that the complainant
    sounded distraught and was crying throughout the roughly 30-minute conversation.

[13]

The
    complainant texted J.F., who also testified
at trial,
and asked him if he would defend her if someone tried to hurt her. The
    complainant and J.F. met and spoke about what the complainant alleged had happened.
    J.F. called the appellant and Jordan and spoke to them on speakerphone, in the
    complainants presence, accusing them of rape. J.F. testified that one person on
    the call was arrogant and laughing the whole thing off, while the other person was
    not and apologized. J.F. later had another call with the person who had apologized,
    who now claimed that he was innocent. Later the same day, the complainant went
    to a police station and made a police report against the appellant.

[14]

The
    appellant testified in his own defence but Jordan did not testify. The
    appellant claimed that the sex was consensual. He said that after Jordan left
    the room, he went to check on the complainant because she was a guest in his
    home and asked her if she wanted another drink. She said yes, so he went to get
    more rum. He said he returned, engaged in small talk with her, and leaned in to
    kiss her. He claimed she moaned and then moved back onto the bed. After a
    couple of minutes of touching and kissing, the appellant left to get a condom,
    returned, and engaged in what he asserted was consensual sex. He testified that
    the complainants body language was receptive throughout and that she never
    protested or told him to stop. The three then left the apartment and parted
    ways. The appellant and Jordan did not invite the complainant to the club with
    them and she said nothing about going with them.

THE TRIAL DECISION

[15]

The
    trial judge did not believe the appellants testimony. He described the
    appellants testimony as glib, often terse and said it failed utterly to
    convince [him] that he was providing a full and accurate account of what
    happened. He said he simply did not believe a word of what [the appellant]
    had to say where it differed from the complainants version of events.

[16]

The trial
    judge further stated that although he had concluded that the complainants
    evidence was probably true and probably the events happened as she described
    them, there were issues with parts of her evidence that were numerous and
    serious enough that it would be unsafe to base a conviction on her evidence
    alone. The trial judge highlighted
the following
:
    (1) the complainant lied to the police in her initial interview about not
    sleeping with Jordan when he came over to her place, in the trial judges view because
    she may have been embarrassed or uncomfortable talking to an older male officer,
    though she later went back to the police to tell the truth; (2) the complainant
    lied at the preliminary inquiry about the telephone call between J.F. and the
    appellant and Jordan by saying that J.F. had told her about the call, when she was
    actually present with J.F. on speakerphone during the call; (3) the trial judge
    found the complainant was trying to enlist J.F. to exact justice on her
    behalf, rather than going to the police, an explanation that the trial judge
    accepted. He found this did not run against her credibility but made it more
    likely that she was telling the truth about what happened in the condo; and (4)
    the complainant testified that she was holding her drink during the sexual
    assault, which the trial judge found improbable. The trial judge found
that the appellant took the drink from her
when he forced
    himself on her. The trial judge noted that this
sort
    of
confusion in the precise sequence of events is not unusual for
    shocking events that happen quickly.

[17]

Despite
    these concerns, the trial judge declared
that
he
    still believe[d] the complainant and that he still believe[d] that matters
    unfolded as she described. He found she had no reason to lie about the
    assault. He rejected the defence theory
that
she
    had a motive to fabricate because Jordan and the appellant did not take her out
    to a club. He found her to be emotionally resilient and not so heavily
    invested in Jordan
that
she would find her
    world shattered by his being rude to her or insensitive at the end of an
    evening.

[18]

The trial
    judge also found the condo video footage powerfully corroborative of the
    complainants evidence. He found the corroboration provided by the video
    surveillance evidence [was] more than enough to satisfy [him] beyond a
    reasonable doubt of the truth of the complainants account of events. The footage
    covered three time periods: (1) the complainant waiting in the lobby for about
    10 minutes as she arrived to see Jordan at the beginning of the evening; (2) the
    complainant, the appellant, and Jordan in the elevator as they left the condo
    after the alleged assault; and (3) the complainant as she waited in the lobby area
    for about 30 minutes after the alleged assault, during which she can be seen crying.

[19]

Applying
    the analysis in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, the trial judge concluded
    that: (1) he did not believe the appellants evidence; (2) the appellants
    evidence did not leave him with a reasonable doubt as to the appellants guilt;
    and (3) the complainants evidence, combined with the video evidence, satisfied
    him of the appellants guilt beyond a reasonable doubt.

ISSUES

[20]

The
    appellant raises three issues:

1.

Did the trial judge err in evaluating the complainants post-event demeanour
    as recorded on the video footage?

2.

Did the trial judge render an unreasonable verdict?

3.

Did the trial judge improperly assess the evidence?

DISCUSSION

Issue #1: Did
    the trial judge err in evaluating the complainants post-event demeanour as
    recorded on the video footage?

[21]

The
    appellants first and principal ground of appeal asserts that the trial judge
    erred in evaluating the complainants post-event demeanour as recorded on the
    video footage.
At trial and
before this court,
    both parties agreed that the video footage  which contained no sound  was
    admissible. It was entered into evidence on consent, although each side asked
    the trial judge to draw different inferences from it. The Crown argued that the
    video evidence corroborated the complainants testimony, while the defence
    urged the alternative inference that the complainant was upset because she regretted
    having consensual sex with both men and felt massively disrespected by being left
    to go home alone.

[22]

Evidence
    of the post-event demeanour of a sexual assault complainant can be used as
    circumstantial evidence to corroborate the complainants version of events:
R.
    v. J.A.A.
, 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41,
per
Rothstein
    J. (dissenting, but not on this point);
R. v. Steele
, 2021 ONCA 186,
    154 O.R. (3d) 721, at paras. 54, 94,
per
van Rensburg J.A.
    (concurring); and
R. v. Mugabo
, 2017 ONCA 323, 348 C.C.C. (3d) 265, at
    para. 25. Such post-event demeanour evidence can be invoked by either side: it can
    assist the defence in raising a reasonable doubt on
the
    issue of
consent, or it can assist the Crown in proving non-consent:
Steele
,
    at para. 54; see also Lisa Dufraimont, Myth, Inference and Evidence in Sexual
    Assault Trials (2019) 44:2 Queens L.J. 316, at pp. 328-29.

[23]

In
Murphy
    v. The Queen
, [1977] 2 S.C.R. 603, at pp. 612, Spence J. writing for the
    majority and the unanimous court on this point, explained how post-event
    demeanour evidence can assist the prosecution:

Independent testimony of a rape complainants emotional condition
    is capable at law of corroboration where it is sufficiently damning that it may
    be considered by a jury to be more consistent with her denial of consent than
    with
the existence of
consent, or,
to put it another way,
where a reasonable inference
    can be drawn by a jury, considering all the circumstances,
that
there is a causal relationship between the
    assault and the complainants distraught emotional condition.

[24]

The
    appellant does not challenge these principles but asserts that the trial judge
    erred in applying them. He claims that the trial judge erred: (1) by making findings
    about the complainants post-event emotional state unsupported by the video
    footage and contradicted by the complainants testimony; and (2)
in rejecting an alternative, innocent explanation for the
    complainants post-event demeanour.

[25]

I do
    not accept the appellants submissions. Although I agree with the appellant
    that some of the trial judges characterizations of the complainants demeanour
    on the video are exaggerated, he was entitled to find that the video footage corroborated
    the complainants denial of consent and was not reasonably consistent with
the existence of
consent.

[26]

The
trial judges core conclusions about the
    complainants post-event emotional state are supported by the video footage and
    are not contradicted by the complainants testimony. The trial judge found that
    the video footage of the complainant in the lobby waiting for the Uber shows a
    woman in a very different emotional state than the woman who entered the
    condominium some 90 minutes or so before. That central finding is
    unassailable. As the trial judge found, when the complainant arrived she appeared
    poised, confident and was running her fingers through her hair. She was
    laughing occasionally while she [was] talking on the phone. She was smiling
    and her body posture [was] relaxed. She was swinging her arms in a rather
    carefree manner. But 90 minutes later, after the alleged sexual assault, she was
    crying pretty much throughout the time of the video. Although there is no
    audio, it is obvious, as the trial judge found, that she was wiping the tears
    away from her face virtually throughout the entire time she [was] in the lobby.
    She [was] obviously very, very upset. As the trial judge also found: I see a
    video of an extremely distraught young woman who is crying copiously and is
    very, very upset. I see no basis to interfere with these core conclusions.

[27]

Even so,
I agree with the appellant that the trial
    judge went too far when he described the complainant as close to being
    emotionally shattered by what ha[d] just happened to her, very defensive, and
    on the verge of losing her self control. In my view, the video footage does not
    justify this characterization of the complainants inner emotional state. This rhetorical
    flourish, however, does not undercut the trial judges core conclusions set out
    above. As
a majority of the
Supreme Court of
    Canada recently underscored in
R. v. G.F.
, 2021 SCC 20, at para. 76, a
    trial judges reasons, particularly in sexual assault cases, must be reviewed
    functionally and contextually rather than in a search for error. Trial
    decisions must not be overturned on the basis of parsing imperfect or summary
    expression on the part of the trial judge, particularly on issues of
    credibility: at para. 76. Thus, while I would find the trial judge went too far
    in his characterization of the video footage, that does not justify setting
    aside his core conclusions.

[28]

Nor
    are the trial judges core conclusions undercut by his conjecture that the
    complainants demeanour in the elevator  where she was huddled in the corner
    and hugged Jordan on the way out but ignored the appellants hand as he reached
    out to her  suggested that she was still hoping that [Jordan] was a person that
    she might be able to have some continued relation with. The trial judge
    appears to have ignored his own salutary caution, expressed a few lines
    earlier, that one cannot read too much into something like that, it is a very
    short clip.

[29]

I
    also disagree with the appellants claim that the trial judges findings of the
    complainants emotional state are contradicted by her own testimony. The complainant
    rejected defence counsels suggestion that, at one point in the video, she was
    in a squatting position in the lobby because she was standing in high heels and
    getting tired. Instead, she testified that it was because she was sad. The
    appellant says that the complainant described herself as being only sad, a
    far cry from being (in the trial judges words) close to being emotionally
    shattered by what has just happened to her. But the trial judges use of much
    more expressive language than the complainant does not detract from his
    essential point  that the complainants emotional state in the video corroborated
    her testimony that the sex was not consensual.

[30]

Finally,
    I do not accept that the trial judge erred in rejecting an alternative,
    innocent explanation for the complainants post-event demeanour. The appellant
    argued that the complainant was upset when she realized that the date with
    Jordan was a pretext to get her to the condo to have sex with both men, that the
    men considered her (as defence counsel at trial, who was not appeal counsel, put
    it) sex worthy, but  not club worthy, and that she was upset about Jordans
    comment
that
she had just been in a threesome.
    The trial judge considered and rejected this defence theory for the
    complainants post-event demeanour. As he explained:

[Counsel for the appellant], in his very able argument, put it
to me
that the complainant had been treated
very
shabbily by [Jordan] and [the appellant]. She
    had been invited over for a night out and instead, as soon as the two men had
    had sex and got what they wanted from her, they just dumped her at the doorstep
    to take her own Uber home and went off to have a night out on their own.
If I was to accept
that version of facts, that the
    leaving of the complainant at the front door was a callous disregard for her as
    a
human being
and treating her as just an
    object for sexual gratification, who was not wanted the moment the men got what
    they wanted,
if I were to accept
that, I still
    would find that motivation to not explain the distraught emotional state in
    which I see the complainant in the lobby of the building. Nor would it explain
    false allegations of sexual misconduct against [the appellant] or
anyone for that matter
. Nor would it explain the
    curious decision to make the allegation against [the appellant] but not against
    [Jordan], if that was a false allegation.

[31]

The
    trial judges other findings supported this conclusion. He accepted the complainants
    evidence
that
she was at first unsure of
    Jordans role in what had taken place in the condo and only realized that
    Jordan was in on it  in the sense of inviting her to the apartment for a
    threesome  over the next day or two.
[1]
I see no basis to interfere with any of these conclusions.

[32]

I also
    reject the appellants claim that the trial judge convicted the appellant based
    solely on the post-event demeanour evidence. The trial judges reasons were
    clear that he
completely
rejected the appellants
    evidence. He also stated that he believed the complainants evidence
that
the appellant had sexually assaulted her. However,
    given the high standard of proof required for a criminal conviction, the trial
    judge fairly noted that he would have had reservations convicting the appellant
    without the video evidence. I see no error in the trial judges reasoning
    process or conclusion.

[33]

I
    therefore conclude that the trial judge did not err in evaluating the
    complainants post-event demeanour as recorded on the video footage. He
was entitled to conclude
that the video footage corroborated
    the complainants denial of consent and was not reasonably consistent with
the existence of
consent. He
was also entitled to infer
a causal relationship between the
    sexual assault and the complainants distraught emotional state reflected in
    the video footage.

Issue #2: Did the trial judge render an unreasonable verdict?

[34]

The
    appellants second ground of appeal asserts that the trial judges verdict was unreasonable.

[35]

A verdict
    is unreasonable if: (1) it is not one that a properly instructed jury or judge,
    acting judicially, could have reasonably rendered; or (2) the trial judge drew
    an inference or made a finding of fact essential to the verdict that (a) is
plainly
contradicted by the evidence that the trial
    judge relied on in support of that finding or inference, or (b) is incompatible
    with evidence not otherwise contradicted or rejected by the trial judge:
R.
    v. C.P.
, 2021 SCC 19, at paras. 28-29;
R. v. R.P.
, 2012 SCC 22,
    [2012] 1 S.C.R. 746, at para. 9.

[36]

When
    determining whether the verdict was reasonable, an appellate court cannot
    interfere with the trial judges assessments of credibility unless it is
    established
that
those assessments cannot be
    supported on any reasonable view of the evidence:
C.P.
, at para. 30;
R.P.
,
    at para. 10.

[37]

Here,
    the appellant asserts that the trial judges verdict is unreasonable because the
    complainants narrative had such fundamental contradictions
that
it rendered her version of events impossible.
    He notes the complainant testified that she was physically held down as she was
    assaulted and that she struggled and kicked
in an
    attempt
to escape  which suggested she understood
at the time that she
was being assaulted  yet she
    also testified that it was only later, when she was in the lobby waiting for
    the Uber, that she
began to process
what had
    happened to her. The appellant also notes
that
there
was an alternative, innocent explanation for
the
    complainants post-event demeanour that could not be excluded.

[38]

I do
    not accept the appellants submissions. Although the trial judge fairly
    acknowledged
that
there were problems with
    aspects of the complainants evidence, he found those problems did not go to
    the core of her account of forced, non-consensual sex. The complainant was
    unequivocal that she did not consent to the sexual activity with the appellant.
    The trial judge determined that her post-event demeanour or emotional state, as
    recorded on the video, corroborated her account. In these circumstances, in my
    view, the verdict cannot be said to have been unreasonable.

[39]

Nor is
    there any contradiction in the complainants testimony that, on the one hand,
    she resisted the appellant, and
, on the other hand,
that
    she only processed what had happened to her later, when she was downstairs in
    the lobby. The events recounted by the complainant happened quickly. She
    testified that she was in shock when she was sexually assaulted and was
    trying to process what had happened to her. That she fought back during the
    assault does not mean
that
she had
fully
processed or comprehended what had just
    happened to her. The appellants argument presumes that resisting during a
    sexual assault is incompatible with not
fully
understanding
    the nature of the assault until later. Yet both the Supreme Court of Canada and
    this court have repeatedly cautioned that there is no inviolable rule on how
    people who are the victims of trauma like a sexual assault will behave:
R.
    v. D.D.
, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65;
R. v.
    Lacombe
, 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. There is
    similarly no inviolable rule on how a sexual assault complainant will process a
    traumatic event. I see nothing incompatible with resisting during a sexual
    assault, being in a state of shock, and only
fully
processing
    the assault somewhat later.

[40]

The trial
    judge
was also entitled to reject
the
    appellants alternative explanation for the complainants post-event demeanour,
for the reasons
already noted above.

[41]

To
    conclude, I do not accept that the trial judges verdict was unreasonable. Even
    accepting that the trial judges description of the video was exaggerated or involved
    speculation in places, this does not undercut his core finding
that
the complainant did not consent to sex with the
    appellant.

Issue #3: Did the trial judge improperly assess the evidence?

[42]

Finally,
    the appellant raised several arguments in his factum that he did not pursue in
    oral argument, alleging that the trial judge improperly assessed the evidence. The
    appellant claims that the trial judge: (1) engaged in stereotypical reasoning as
    to why the complainant did not leave the room when the appellant first made advances
    towards her, as reflected in the trial judges comment that part of being a
    young woman in todays age is rebuffing unwanted sexual advances; (2) speculated
    that the complainant lied in her police statement
that
she did not have sex with Jordan the second time she met him because she
    was embarrassed; (3) addressed the complainants credibility but failed to analyze
    her reliability; and (4) engaged in uneven scrutiny of the evidence of the
    appellant and complainant.

[43]

I
    see no merit in these arguments. They essentially invite this court to second-guess
    the trial judges credibility findings based on a paper record and to
    circumvent the appellate deference owed to those findings. As
a majority of the
Supreme Court recently underscored
    in
G.F.
, at para. 81, a trial judges findings of credibility deserve
    particular deference, because in our system of justice the trial judge is the
    fact finder and has the benefit of the intangible impact of conducting the
    trial. The majority in
G.F.
emphasized, once again, that [c]redibility
    findings are the province of the trial judge and attract significant deference
    on appeal (citations omitted): at para. 99. Here
, in
    my view,
the trial judge complied with his obligation to [strive] to
    explain why [the] complainant [was] found to be credible, or why the [appellant
    was] found not to be credible, or why the evidence [did] not raise a reasonable
    doubt: at para. 81. I therefore see no basis to intervene.

[44]

Nor
    is there any merit in the appellants argument that the trial judge failed to
    assess the complainants reliability. The majority in
G.F.
emphasized
    that [a] trial judges determination to accept or believe inculpatory witness
    evidence includes an implicit assessment of truthfulness or sincerity and
    accuracy or reliability (citation omitted): at para. 82. The majority concluded
    that, provided trial judges consider the
relevant
considerations
    bearing on credibility and reliability, there is no requirement that they
    utter the word reliable: at para. 82. Here, even though the trial judge did
    not specifically refer to the reliability of the complainants evidence, he carefully
    scrutinized both the appellants evidence and the complainants inculpatory
    evidence, as corroborated by the video evidence, including the truthfulness and
    accuracy of both. I see no basis for this court to intervene.

CONCLUSION

[45]

Despite
    Ms. Yuens excellent submissions, I would dismiss the appeal.

Released: June 11, 2021 R.G.J.

M. Jamal J.A.

I agree. R.G.
    Juriansz J.A.

I agree. Coroza J.A.

[1]

The trial judge found that Jordan understood that [the
    appellant] had just had sex with the complainant in the bedroom, but did not
    understand that the sex was without consent.


WARNING

Prohibitions under the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:

Prohibition re identifying child

87(8)
No person shall publish or make public information that
    has the effect of identifying a child who is a witness at or a participant in a
    hearing or the subject of a proceeding, or the childs parent or foster parent
    or a member of the childs family.

Prohibition re identifying person charged

87(9)
The court may make an order prohibiting the publication of information that has
    the effect of identifying a person charged with an offence under this Part.

Transcript

87(10)
No person except a party or a partys lawyer shall be
    given a copy of a transcript of the hearing, unless the court orders otherwise.

Offences
    re publication

142 (3)
A person who contravenes subsection 87 (8) or
    134 (11) (publication of identifying information) or an order prohibiting
    publication made under clause 87 (7) (c) or subsection 87 (9), and a director,
    officer or employee of a corporation who authorizes, permits or concurs in such
    a contravention by the corporation, is guilty of an offence and on conviction
    is liable to a fine of not more than $10,000 or to imprisonment for a term of
    not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: Childrens Aid Society of Algoma v. G.C., 2021 ONCA
    400

DATE: 20210610

DOCKET: C69175

Doherty, Trotter and Thorburn
    JJ.A.

BETWEEN

Childrens Aid Society of Algoma

Applicant/Respondent

(Respondent)

and

G.C.

Respondent/Appellant

(Appellant)

and

C.P., S.B., and Conseil des Abenakis DOdanak

Respondents

(Respondents)

Eric McCooeye, for the appellant

Jennifer Mealey, for the respondent Childrens Aid
    Society of Algoma

No one appearing for the respondent C.P.

No one appearing for the respondent S.B.

No one appearing for the respondent Conseil des Abenakis
    DOdanak

Catherine Bellinger and Liisa Parisé, for the respondent
    Office of the Childrens Lawyer

Heard: June 2, 2021 by video conference

On appeal from the order of Justice
    Annalisa S. Rasaiah of the Superior Court of Justice, dated February 3, 2021, dismissing
    an appeal from the order of Justice John Kukurin of the Ontario Court of
    Justice, dated November 3, 2019.

REASONS FOR DECISION

[1]

The Childrens Aid Society of Algoma (the Society) applied to have three
    of the appellants children found to be in need of protection on the grounds
    that they are at risk of sexual harm on account of their father under s.
    74(2)(d) of the
Child, Youth and Family Services Act, 2017
, S.O. 2017,
    c. 14, Sched. 1. (the
CYFSA
). The motion judge made this finding on a summary
    judgment motion. Orders as to supervision and access have yet to be made.

[2]

The appellants first appeal of this order, brought pursuant to s. 121
    of the
CYFSA
, was dismissed. He appeals that decision to this court:
Courts
    of Justice Act
, R.S.O. 1990, c. C-43, s. 6(1).

[3]

For the reasons that follow, the appeal is dismissed.

Background

[4]

The appellant is the biological father of three children: K.P, born in
    2008; O.C., born in 2013; and J.H.C., born in 2015. K.P.s mother is C.P.,
    while O.C. and J.H.C.s mother is S.B.

[5]

The Society brought child protection applications in respect of each
    child: K.P.s was brought on the grounds of actual sexual harm and risk of
    sexual harm in 2013; the other two applications were based on risk of sexual
    harm shortly after each child was born. All three applications were ordered to
    be tried together.

[6]

The appellant has not been convicted of any sexual offences, though
    charges have been laid against him twice. He was charged with historical sexual
    offences against two pre-teen girls, but the charges were stayed for delay.
    Later, the appellant was charged with sexual offences against K.P., but the
    Crown withdrew the charges. Since 2013, two other women have made sexual
    misconduct allegations against the appellant. Both alleged the misconduct
    occurred when they were under 18.

[7]

Well before the summary judgment motion, the appellant was ordered to
    undergo a psychosexual assessment. This assessment involved phallometric
    testing. The assessor, Dr. Robert Dickey, was of the opinion was that the
    appellant suffers from pedohebephilia.

The Summary Judgment Motion

[8]

In support of its motion for summary judgment, the Society relied on voluminous
    materials, including the appellants psychosexual assessment and affidavit
    evidence from three complainants who alleged historical sexual assault.
[1]
The motion was only concerned with the risk of sexual harm (s. 74(2)(d) of the
CYFSA
).
    The motion judge concluded there was no genuine issue requiring a trial to
    determine this question. He made the finding under s. 74(2)(d).

[9]

The motion judge delivered extensive and detailed reasons in which he considered
    his jurisdiction to grant summary judgment, as well as the proper approach to
    summary judgment motions in child protection cases mandated in
Kawartha-Haliburton
    Childrens Aid Society v. M.W.
, 2019 ONCA 316, 432 D.L.R. (4th) 497. He
    sifted through a considerable body of documentary evidence and made many
    admissibility determinations. As a result of this process, the motion judge
    based his finding on the first-hand affidavits of three adult women who
    reported events from many years ago when they were between the ages of 9 and
    12, a willsay statement (and an accompanying police occurrence report) from
    another woman describing historical sexual abuse, the psychosexual assessment,
    and the appellants response.

[10]

The
    motion judge analyzed this evidence through the lens of
Kawartha-Haliburton
and concluded, at para. 146:

In summary, I conclude that the society has provided sufficient
    evidence for me to conclude that there is no genuine issue that requires a
    trial with respect to whether the [appellant] is a risk of sexual harm to his
    three children. I arrive at this conclusion cautiously realizing that to do
    otherwise is contrary to the directive guidance of the appellate court in the
Kawartha
case. I am satisfied that, if a trial were held on this issue of a finding in
    need of protection on account of a risk of sexual harm, the same result would
    be inevitable and there would be no realistic possibility of an outcome other
    than that sought by the applicant society. I am confidant that I have used
    extreme caution to assess the admissibility of various pieces of evidence
    presented on this summary judgment motion and have rejected what is
    inadmissible in law, and have given appropriate judicial weight to what is
    admissible, again in law. I have gauged the admissible evidence on both sides,
    and have given reduced weight where deserved. I have applied the
    jurisprudential principles that have been established over several decades and
    that still apply to summary judgment motions in child protection cases. I have
    applied these to the [appellants] responses to this motion and have found that
    he has not established with specific facts, that there is a genuine issue that
    requires a trial. Finally, I have been able to reach what I consider a fair and
    just determination on the merits on a motion for summary judgment.

[11]

The
    appellant raised numerous issues on his first appeal, all of which were
    dismissed. In a nutshell, the appeal judge determined that the motion judge
    adopted the proper approach to the summary judgment power in child protection
    proceedings, appropriately framed the issue before him, made no errors in his
    evidentiary rulings, and properly weighed and assessed the evidence he
    admitted.

Analysis

[12]

The
    appellant raised many of the same issues from his first appeal on this appeal.
    However, at the hearing of this appeal, he focused on one ground  whether the
    motion judge and the appeal judge properly considered the principle of
    proportionality in the summary judgment proceeding.

[13]

The
    appellant submits that, given the significant consequences of a finding under
    s. 74(2)(d) of the
CYFSA
, the summary judgment procedure is an
    unsuitable vehicle for adjudication. He submits that the judges below failed to
    appreciate the unfairness in proceeding in this manner. Principally, the
    appellant relies on his inability to cross-examine the affiants who made
    allegations of sexual impropriety against him. He also criticizes the appeal
    judges approach to certain findings made by the motion judge, specifically, those
    that related to the credibility of witnesses.

[14]

The
    appellant originally indicated his intention to cross-examine two of the female
    affiants. This request was subsequently abandoned without explanation. Before this
    court, appellants counsel submits that the request was abandoned because the
    appellant could not afford the costs associated with cross-examining witnesses
    in different parts of the province and then obtaining transcripts of their
    evidence. However, this was not put on the record before the motion judge; it
    was not raised with the appeal judge. Accordingly, there is no foundation for
    this court to evaluate this claim.

[15]

Nonetheless,
    assuming impecuniosity, relief might have been obtained in the summary judgment
    provision in the
Family Law Rules
, O. Reg. 114/99. These rules apply to
    proceedings under Parts V, VII, and VIII of the
CYFSA
: r. 1(2)(a)(ii). Rules
    16(6.1) and (6.2) gives a judge hearing a summary judgment motion the following
    powers:

POWERS

(6.1) In determining whether there is a genuine issue requiring
    a trial, the court shall consider the evidence submitted by the parties, and
    the court may exercise any of the following powers for the purpose, unless it
    is in the interest of justice for such powers to be exercised only at a trial:

1.

Weighing the
    evidence.

2.

Evaluating the
    credibility of a deponent.

3.

Drawing any
    reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the
    powers set out in subrule (6.1), order that oral evidence be presented by one
    or more parties, with or without time limits on its presentation.

For an example of the use of a mini-trial in this
    context, see
The Childrens Aid Society of the Districts of Sudbury and
    Manitoulin v. V.T.
, 2018 ONCJ 220, at paras. 10-12.

See also r. 20: Questioning
    a Witness and Disclosure.

[16]

It
    was open to all counsel on the motion to request that the motion judge direct a
    mini-trial and order that certain witnesses be required to give oral evidence.
    This was not done.

[17]

The
    appellant submits that the appeal judge erred by approving the motion judges
    approach to assessing the evidence in relation to the evidence of one of the
    affiants. In the face of the affiants evidence, the motion judge said, at
    para. 94: The [appellants] response to these allegations  is that he does
    not have any knowledge of the events described  and has no memory of them, but
    nevertheless denies the incident and any wrongdoing. Later in his reasons, the
    motion judge returned to the affiants evidence, saying it was very
    persuasive, basically uncontradicted, and not seriously attacked by [the
    appellant]: at para. 130. He explained that the appellant had the opportunity
    to cross-examine the affiant, but chose not to follow through, despite the fact
    the evidence was very damaging to him. Instead, the appellant merely denied
    the allegation happened. But in this case, a denial was not enough.

[18]

The
    appellant submits the motion judge improperly found the affiants evidence was
    uncontradicted and that the appellants denial of wrongdoing was not enough.
    He says there are circumstances where a denial may be the only option, as it
    may be impossible to provide specific facts to rebut the allegation. As a
    result of this error, the motion judge wrongfully gave enhanced weight to the
    affiants evidence.

[19]

The
    appellant had made similar submissions to the appeal judge  that the motion
    judge erred in finding the appellants denial was insufficient to contradict
    the affiants evidence and in giving the evidence enhanced weight. In
    addressing this submission, the appeal judge referred to r. 16(4.1), which
    provides:

(4.1) In response to
    the affidavit or other evidence served by the party making the motion,
the
    party responding to the motion may not rest on mere allegations or denials but
    shall set out, in an affidavit or other evidence, specific facts showing that
    there is a genuine issue for trial
. [Emphasis added.]

[20]

Turning
    to the motion judges decision on this issue, the appeal judge said, at paras.
    54-55:

Contrary to the appellants position, [the motion judge]
    expressed and acknowledged that he appreciated that sometimes a denial in some
    circumstances may be the only reasonable response and perhaps the only possible
    response.
However, in this case, he concluded that [the affiants] evidence
    was not seriously attacked by [the appellant], when he had the opportunity to
    do so, putting your best foot forward is required on a summary judgment motion
.

It was not incorrect to address that [the appellant] was fully
    aware of his right to cross-examine the affidavits and had previously taken
    steps in the proceeding for same, only to have abandoned them.
I do not
    agree that [the motion judge] expressed that the evidences weight was enhanced
    or that he enhanced same for a failure to seek a cross-examination of the
    evidence filed on the motion before the hearing of it.
[Emphasis added.]

We agree with this reasoning. It was open to the
    motion judge to deal with evidence in the manner that he did.

[21]

The
    appellant made numerous other submissions in his factum. Some of them deal with
    the general approach of the motion judge and the appeal judge to summary
    judgment in child protection proceedings; others attack admissibility decisions
    and the weighing of the evidence that was admitted.

[22]

We
    agree with the appeal judge that the motion judge applied the correct test for
    summary judgment and that the motion judges reasons demonstrate a proper
    application of the principles discussed in
Kawartha-Haliburton
.

[23]

As
    for the appellants complaints about the admissibility of various pieces of
    evidence, we agree with the appeal judge when she said, at para. 50:

Further, the reasons demonstrate that
[the motion judge]
    applied a cautious approach to the evidence
, carefully screening the
    voluminous record,
making admissibility rulings against a significant
    portion of [the Societys] filings
, including affidavits that [the
    appellant] would describe as overpowering and written by professional
    affidavit writers, that would create imbalance. [Emphasis added.]

[24]

After
    ruling that the bulk of the evidence presented by the Society was inadmissible,
    the motion judge engaged in a careful balancing of what remained. Rule 16
    permitted the motion judge to make findings of credibility and to weigh the
    evidence of the affiants, and his conclusions are entitled to deference. The evidence
    that he accepted formed a proper foundation for his finding under s. 74(2)(d)
    of the
CYFSA
.

Disposition

[25]

The
    appeal is dismissed. None of the parties seek costs. Accordingly, no costs order
    is made.

Doherty J.A.

Gary Trotter J.A.

J.A. Thorburn J.A.

[1]

Two of these women were the complainants who made the
    historical allegations that resulted in a stay, referred to in para. 6.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gervais, 2021 ONCA 404

DATE: 20210610

DOCKET: C67391

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Gervais

Appellant

Raymond Gervais, in person

Brian Snell, as duty counsel

Nicole Rivers, for the respondent

Heard: June 7, 2021 by videoconference

On appeal from the sentence imposed on July 11, 2019 by Justice
    Deborah Kinsella of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Gervais appeals his sentence of four years for assault causing
    bodily harm.

[2]

The appellant attempted to force his way into an apartment in search of
    a female friend. When the victim blocked his entry, the appellant assaulted him,
    including kicking the victim in the head while the victim was on the ground,
    causing severe injuries. The victim was 66 years old at the time. The appellant
    was 50. The appellant also has a lengthy criminal record.

[3]

The appellant submits that the sentencing judge overemphasized denunciation
    and also failed to respect the jump principle. We do not agree.

[4]

The sentencing judge considered all of the relevant aggravating and
    mitigating factors. Her reasons for sentence are well articulated and are
    entitled to deference. The challenges to the sentencing judges reasons do not
    amount to establishing any error in principle. Further, given the seriousness
    of the injuries caused and the criminal record of the appellant, the sentence
    is not demonstrably unfit. Consequently, there is no basis for this court to
    interfere with the sentence imposed:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089.

[5]

Leave to appeal sentence is granted but the appeal is dismissed.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. John, 2021 ONCA 403

DATE: 20210610

DOCKET: M52184

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren John

Appellant

Darren John, in person

Nicole Rivers, for the respondent

Heard: in writing

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 19, 2021 by Justice Peter J. Cavanagh of the
    Superior Court of Justice, dismissing the appeal from the conviction entered on
    June 30, 2015 by Justice Lucia Favret of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. John seeks leave to appeal from the dismissal of his appeal from his
    conviction and sentence on a charge of knowingly uttering or causing a person
    to receive a threat to cause bodily harm contrary to s. 264.1(1)(a) of the
Criminal

Code
.
The appellant was sentenced to a suspended sentence with a
    one year period of probation.

[2]

The summary conviction appeal court judge gave detailed reasons for
    rejecting each of the 14 issues raised by Mr. John on his appeal.

[3]

While Mr. John repeats the issues he advanced in the court below, the main
    basis for which he now seeks leave to appeal revolves around the fact that some
    disclosure was not provided to him prior to his trial. It appears from the
    material filed that a disclosure package was made available to Mr. Johns former
    counsel but at a time after that lawyer had ceased to act for Mr. John.

[4]

This issue arose during the course of Mr. Johns trial. He was advised
    by the trial judge as to the proper procedure to address this issue, including
    writing first to Crown counsel about it and then, if still unsatisfied, raising
    the issue with the trial judge. It appears that Mr. John did not undertake
    either of those steps.

[5]

After his conviction, Mr. John brought many procedural motions, at least
    one of which touched on this disclosure issue. All but one of those motions were
    summarily dismissed, including the motion relating to the disclosure issue.

[6]

The test for granting leave to appeal in a summary conviction matter is
    well-established. Leave should be granted sparingly. Two key variables will
    normally determine whether leave should be granted  the significance of the
    legal issues raised to the general administration of criminal justice, and the
    merits of the proposed grounds of appeal:
R. v. R. (R.)
(2008), 90 O.R.
    (3d) 641 (C.A.).

[7]

This case does not have any significance to the general administration
    of justice. Further, there is an absence of merit to the appeal. The disclosure
    that Mr. John complains he did not receive, and thus could not use at his trial,
    relates principally to one of the charges on which he was acquitted. Further,
    his failure to raise the issue during the course of the trial is fatal to his
    complaint.

[8]

The motion for leave to appeal is dismissed.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stephens, 2021 ONCA 402

DATE: 20210610

DOCKET: M52337 (C58723)

Benotto, Trotter and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Russell Stephens

Appellant

William Russell Stephens, in person

Michael Fawcett, for the respondent

Heard: June 7, 2021 by videoconference

On appeal from the decision of the Summary Convictions
    Appeal Court dated January 29, 2014 by Justice Harrison S. Arrell of the
    Superior Court of Justice, dismissing the appeal from the conviction entered on
    July 20, 2009 by Justice Brian Stead of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Stephens brings a motion in which he seeks to set aside the dismissal
    of his motion for leave to appeal as abandoned which occurred by order dated May
    11, 2016. Mr. Stephens also seeks the appointment of
amicus

curiae
and an order directing that a fresh psychiatric report be prepared regarding
    whether Mr. Stephens was not criminally responsible (NCR) at the time of the
    offence.

[2]

Mr. Stephens raised three issues at the hearing. One relates to
    disclosure alleged not to have been provided prior to trial; another relates to
    Mr. Stephens view of the qualifications (or lack thereof) of the doctor who
    prepared the recent psychiatric report; and the third relates to Mr. Stephens
    disagreement with the conclusion of that report.

[3]

With respect to those latter two issues, on August 21, 2015, Juriansz
    J.A. ordered that a psychiatric report be prepared on the NCR issue. That
    report was delivered on February 16, 2016. It concluded the available evidence
    suggests that Mr. Stephens does not meet criteria to be found not criminally
    responsible. The report was prepared by a psychiatrist from Western
    University.

[4]

Mr. Stephens has not provided any explanation for why his motion for
    leave to appeal should be reinstated after he filed a notice of abandonment on
    April 25, 2016. The disclosure issues that Mr. Stephens now raises would have
    been known to him prior to him filing his notice of abandonment.

[5]

With respect to the psychiatric report, Mr. Stephens has not provided
    any proper foundation for his request for the preparation of a new psychiatric
    report. All that Mr. Stephens says is that the report was prepared by an
    unqualified doctor and his conclusions are nonsensical. Neither of those assertions
    are borne out by the record.

[6]

Mr. Stephens did not address his request for the appointment of
amicus

curiae
. In any event, there is no basis for such an appointment in
    the circumstances of this case.

[7]

The motion is dismissed.

M.L. Benotto J.A.

Gary Trotter J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dhatt v. Beer, 2021 ONCA 412

DATE: 20210609

DOCKET: C68375 and C68539

Strathy C.J.O., Brown and Miller JJ.A.

BETWEEN

Mandeep Dhatt and Kulwinder Dhatt

Plaintiffs (Respondents)

and

Derek Beer and Indira Beer

Defendants (Appellants)

and

Jay Brijpaul and Re/Max West Realty Inc.,
    Brokerage

Third Parties (Respondents)

David P. Lees and Zachary Silverberg, for the appellants

Arnie Herschorn, for the respondents, Mandeep Dhatt and
    Kulwinder Dhatt

Serena L. Rosenberg, for the respondents, Jay Brijpaul
    and Re/Max West Realty Inc.

Heard: February 10, 2021 by video conference

On appeal from the judgment and order of Justice Carole
    J. Brown of the Superior Court of Justice, dated May 1, 2020 and July 30, 2020,
    respectively, with reasons for judgment reported at 2020 ONSC 2729.

COSTS ENDORSEMENT

[1]

In accordance with the agreement of the parties, the appellants
    shall pay the respondents, Mandeep Dhatt and Kulwinder Dhatt, their costs of
    the appeal fixed in the amount of $8,200, and the third party respondents, Jay
    Brijpaul and Re/Max West Realty Inc., Brokerage, their costs of the appeal
    fixed in the amount of $6,700, both amounts inclusive of disbursements and
    applicable taxes. The purchase price under the agreement of purchase and sale
    dated January 22, 2016 shall be reduced by the amount of such costs.

G.R. Strathy C.J.O.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: De Palma v. Canadian Federation of Independent
    Business, 2021 ONCA 406

DATE: 20210609

DOCKET: C67947

Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.

BETWEEN

Francesco De Palma

Plaintiff (Appellant)

and

Canadian Federation of Independent Business

Defendant (Respondent)

Andrew Monkhouse and Samantha Lucifora, for the
    appellant

Nafisah Chowdhury, for the respondent

Heard and released orally: June 7, 2021 by
    video conference

On appeal from the order of Justice Janet Leiper of the
    Superior Court of Justice, dated December 20, 2019.

REASONS FOR DECISION

[1]

This is an appeal from a motion for summary judgment dismissing the
    appellants claim for constructive dismissal, among other relief.

[2]

The appellant was employed by the Canadian Federation of Independent
    Business, the respondent, for approximately 20 years when his sales of new
    memberships for the respondent began to decline. When the respondent raised the
    matter with the appellant, the appellant stated that he no longer wished to be
    involved in selling new memberships because of his age, health, and tenure with
    the respondent. Discussions ensued, and eventually the appellants insurer
    approved him for Long Term Disability benefits. Approximately 19 months later,
    the appellant brought a claim for constructive dismissal against the
    respondent, along with other heads of relief.

[3]

The respondent then brought a motion for summary judgment, seeking to
    dismiss all of the appellants claims in his Statement of Claim pursuant to r.
    20.01(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
    Following an application of the courts powers under r. 20.04(2.1), the motion
    judge was satisfied that there was no genuine issue requiring a trial with
    respect to the appellants claims.

Therefore, the respondent succeeded
    on their motion for summary judgment, obtaining the dismissal of the
    appellants action.

[4]

The appellant appeals on the basis of four alleged errors made by the
    motion judge.

[5]

First, the appellant argues that the motion judge erred by failing to
    consider each of his claims set out in the Statement of Claim, instead focusing
    solely upon the claim involving constructive dismissal. These include the
    claims for intentional infliction of mental distress, violation of human
    rights, and punitive damages. We do not agree.

[6]

While the motion judge did focus upon the constructive dismissal claim,
    she was correct to do so, as she found constructive dismissal was at the
    heart of the appellants claim. We agree with that assessment. If there was no
    constructive dismissal of the appellant, there could be no intentional infliction
    of mental distress and no possibility for punitive damages. Accordingly, it was
    not necessary for the motion judge to go on and consider those other heads of
    relief.

[7]

In light of her conclusions relating to the heart of the matter, nor
    was there any reason for the motion judge to go on and specifically address the
    suggestion that the respondent had breached the
Human Rights Code
,
    R.S.O. 1990, c. H.19, by failing to accommodate the appellants disability. In
    fact, as found by the motion judge, the constructive dismissal claim could not
    succeed because the respondent was reasonabl[y] request[ing] information to
    design a plan for accommodation. Therefore, the respondent was making active
    efforts to attempt to accommodate the appellants disability. All secondary
    claims flowed from the constructive dismissal claim and, as such, it was truly
    the only live issue before the motion judge. She squarely dealt with that issue
    in her reasons.

[8]

Second, the appellant claims that the motion judge erred in failing to
    grant him his requested adjournment of the motion for summary judgment. We see
    no error in the motion judges refusal to grant this request. There was no
    evidentiary foundation placed before the motion judge that would have supported
    a late-in-the-day adjournment. In these circumstances, we defer to the motion
    judges exercise of discretion.

[9]

Third, the appellant argues that the motion judge erred in her approach
    to the question of summary judgment. In essence, the appellant claims that
    summary judgment was not appropriate in the circumstances. We do not agree.

[10]

The
    motion judge correctly stated the law relating to summary judgment. We agree
    with her assessment that the matter turned largely on documentary evidence,
    where the communications between the parties were carefully catalogued. For the
    reasons stated by the motion judge, those communications revealed that the
    respondent did not constructively dismiss the appellant. Rather, the respondent
    was making efforts to determine how to accommodate the appellant in the
    workplace, which efforts were frustrated by the appellants refusal to comply
    with the respondents requests. This was therefore an entirely appropriate case
    for summary judgment.

[11]

Fourth,
    and finally, the appellant argues that the motion judge erred because she
    failed to pronounce upon the outcome of his employment status. The motion judge
    was not asked to do so. It does not fall to the appellant to allege an error in
    failing to address something that he did not raise at the motion.

[12]

The
    appeal is therefore dismissed.

[13]

Costs will be paid to the respondent in the amount of $20,000, all
    inclusive.

Fairburn A.C.J.O.

A. Harvison Young
    J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: K.K. v. M.M., 2021 ONCA 407

DATE: 20210608

DOCKET: M52479 & M52499 (C69393)

Zarnett J.A. (Motions
    Judge)

DOCKET: M52479

BETWEEN

K.K.

Applicant

(Appellant/Moving
    Party)

and

M.M.

Respondent

(Respondent/Responding
    Party)

DOCKET: M52499

AND BETWEEN

K.K.

Respondent

(Appellant/Responding
    Party)

and

M.M.

Applicant

(Respondent/Moving Party)

Gary Joseph and Vivian Li, for the appellant, K.K.

Aida Pasha, for the respondent, M.M.

Heard: June 3, 2021 by videoconference

ENDORSEMENT

Introduction

[1]

The appellant, K.K. (the father) moves for a
    stay pending appeal of the aspects of the trial judges April 9, 2021 Final
    Order (the Order) that pertain to parenting the parties son, J.K.

[2]

The Order directed that J.K.s primary residence
    be with the respondent, M.M. (the mother), and temporarily suspended, and
    then restricted, contact between the father and J.K. Pursuant to the Order,
    J.K.  has relocated to the mothers home and has been residing with her for
    close to two months. For about six years prior to trial, J.K. had lived with
    the father.

[3]

The mother opposes the stay and moves for
    security for costs of the appeal.

[4]

For the reasons that follow, both motions are
    dismissed.

The Litigation, The Trial Judges Findings, and the Order

[5]

The parties separated in November 2012. They then
    engaged in what the trial judge described as a protracted high-conflict legal
    battle involving their children, V.K. (now 16 years old) and J.K (now 11 years
    old). From the time the proceedings commenced in 2013, there were approximately
    40 court appearances at motions and conferences.

[6]

During the litigation, several pre-trial orders
    about the childrens primary residence were made. In March 2014, sole custody
    of the children was granted to the father based on an interim finding of
    parental alienation by the mother. As the trial judge found, [f]or the next
    six and a half years, the children resided with the father inBrampton and had
    extremely limited parenting time with the mother, including lengthy periods of
    virtually no contact or communication.

[7]

In September 2020, V.K. left the fathers residence and
    moved in with the mother in Toronto. At the time of trial, the children were
    living in separate residences  J.K. with the father and visiting the mothers
    house on weekends, and V.K. with the mother.

[8]

The matter was tried over 19 days between
    November 2020 and April 2021. Among the major issues at trial were the allocation
    of parental decision-making, the question of with whom the children should
    primarily reside, and the parenting schedule.
[1]
Important to the disposition of those issues was the question of which parent
    had tried to alienate the children from the other parent.

[9]

The trial evidence canvassed the history of the
    parties behavior and interactions with the children, one another, and various
    professionals. This provided the trial judge with what she considered to be a
    more comprehensive evidentiary basis than that on which the interim pre-trial
    findings had been made.

[10]

The trial judge found that the father was not a
    credible witness. She found the mother to be credible and, for the most part, a
    reliable historian. She concluded that the mother did not engage in any
    alienating conduct, but rather was the target of the fathers vilification and
    parental alienation.

[11]

The trial judge considered the parenting plans
    put forward by the parties but directed herself that she was ultimately to
    determine what orders would be in the childrens best interests. In this
    regard, she made several findings that underpin the provisions of the Order pertaining
    to J.K.

[12]

The trial judge found that the physical,
    emotional and psychological safety, security and well-being of both children
    would best be fostered if they were living together in their mothers home.
    She found that while V.K. had made a rational decision in her own best interest
    to move in with her mother, J.K. was not old enough to be able to evaluate what
    was in his own best interest, that his views had been profoundly influenced by
    his fathers relentless vilification of his mother, and that his expressed
    desire (including to an Office of the Childrens Lawyer clinician) that he
    wished to reside with his father was not independently formed.

[13]

The trial judge concluded that J.K.s best
    interests necessitate not only that he lives principally with his mother and
    sister, but also that he has no contact with his father for a temporary period
    of time. She came to that determination after noting that J.K. had a strong
    emotional attachment to his father, in whose primary care J.K. had been for most
    of his life and recognizing that separating him from his father would have a
    serious emotional impact on him. But she was convinced that he needs to be
    removed from the poisonous atmosphere of his fathers orbit in order to escape
    the crushing pressure under which he has been placed.
She rejected ordering
    supervised parenting time for the father to maintain regular contact with J.K.,
    which would be a less dramatic transition fraught with less emotional upheaval
    given the fathers history of continual manipulation and relentless and
    effectiveefforts to undermine J.K.s relationship with the mother, which she
    expected would continue. She concluded that a temporary period of no contact
    with the father is what will promote J.K.s best interests
.

[14]

The Order, made immediately following the conclusion
    of the trial, addresses parenting of both children. I describe in general terms
    only those aspects relating to J.K., as they are the subject of both the appeal
    and the motion for a stay.

[15]

The Order directed that the principal residence
    of J.K. would be with the mother, who would have sole responsibility for making
    all day-to-day significant decisions, including selection of schools,
[2]
professionals, and decisions about
    healthcare, without any requirement to consult with the father. The father is
    prohibited, until June 19, 2021, from communicating with J.K. or having any
    parenting time with him outside of sessions with a specified counsellor. From
    June 20 to July 31, 2021, the father is permitted two weekly video calls of up
    to 20 minutes in length with J.K. After August 1, the father is also permitted
    in-person parenting time with J.K. each Sunday from 10 a.m. to 6 p.m. After
    September 30, 2021, the father may bring a motion before the trial judge to
    review the parenting schedule and for expansion of his parenting time with J.K.
    and his responsibility for parental decision-making.

The Motion to Stay

[16]

The fathers motion to stay was brought before
    the detailed reasons of the trial judge were available but was heard shortly
    after those reasons were released. The father asks that the Order be stayed and
    that the care and primary residence of J.K. be returned to him, pending
    disposition of his appeal.

[17]

The test for a stay of an order involving the parenting of a child is
    not in dispute. The overarching consideration in whether to grant a stay
    pending appeal is whether doing so is in the interests of justice. Three
    factors are considered: (1) whether, on a preliminary assessment, the appeal
    raises a serious question, recognizing that this is a low threshold; (2)
    whether the child would suffer irreparable harm if the application were
    refused; and, (3) the balance of convenience, namely, whether there would be
    greater harm from the granting or refusal of the remedy pending a decision on
    the merits:

Lefebvre v. Lefebvre

(2002),
    167 O.A.C. 85 (C.A.), at para. 6;
Circuit World Corp. v. Lesperance

(1997),
    33 O.R. (3d) 674 (C.A.), at paras. 8-9.

[18]

In my view, it is not in the interests of
    justice to grant a stay.

[19]

On the merits of the appeal, the father focusses
    on the decision of the trial judge to attach no weight to the opinions or
    recommendations in reports made by an assessor appointed under s. 30 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA

), or to arrange for him to testify. The
    assessors 2014 reports were the support for the finding in March 2014 that the
    mother had engaged in parental alienation, which led to interim custody orders
    in the fathers favour; the assessor made subsequent reports through 2018. Under
    the
CLRA
, an assessors reports are admissible
    in evidence and the assessor may be required by any of the parties to attend at
    the hearing as a witness: ss. 30(9), (10).

[20]

The trial judge made these rulings relying on a
    decision made by the Inquiries, Complaints and Reports Committee of the College
    of Physicians and Surgeons of Ontario (CPSO) in regulatory proceedings
    against the assessor and a record of the assessors membership status on the
    CPSO website. She viewed the regulatory decision as discrediting the assessors
    reports because it found that they had been prepared in a manner that fell
    below professional standards. Aside from the regulatory decision, she would not
    have relied on the assessors reports without his attendance for
    cross-examination, a request she would have denied because of undertakings the assessor
    had given to the CPSO as disclosed by the website information.

[21]

The father argues that the trial judge erred in
    overriding the statutory admissibility of the assessors reports and the
    statutory ability of a party to request the assessors attendance at trial. The
    father submits that she erred in treating, as inapplicable, s. 36(3) of the
Regulated
    Health Professions Act
, 1991
, S.O. 1991, c. 18. (
RHPA
), which
    makes records of regulatory proceedings at the CPSO and decisions made in them
    inadmissible in civil proceedings. He argues that the trial judge erred in
    concluding that a family law proceeding is not a civil proceeding as
    contemplated by the
RHPA
.

[22]

This argument passes the low threshold that is
    the merits aspect of the test for a stay. I say that while noting that even if
    the trial judge erred in these rulings, it is by no means clear that this would
    affect her overall decision in light of her other findings.

[23]

I am not satisfied the irreparable harm and balance of convenience
    aspects of the test favour a stay.

[24]

The father argues that directing J.K. to live
    with his mother and sister deprives him of the care of his father, in whose
    custody he had been for years. It was also against J.K.s expressed preferences
    and profoundly upsetting to him. Finally, the father submits that it will have
    the effect, albeit currently muted by the pandemics imposition of virtual
    school attendance, of causing J.K. to change schools, disrupting relations with
    his friends.

[25]

The difficulty with the fathers argument is
    that the trial judge gave detailed consideration to J.K.s best interests and
    found that they required him to reside with the mother and sister, and that
    there be a temporary suspension, followed by a re-introduction in defined
    stages, of contact with the father. She considered the very matters that the
    father relies on; specifically, J.K.s preferences, his attachment to his
    father, the emotional impact of the order she was going to make, and the
    schooling and social supports he had and would have. The fathers irreparable
    harm and balance of convenience arguments thus proceed on a different view of
    J.K.s best interests than taken by the trial judge. But, on a motion to stay,
    the result of the trial is to be treated as
prima

facie
correct:
Circuit World
, at para. 13.

[26]

Parenting decisions are inherently exercises in discretion:
Van
    de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13
.
A trial judges exercise of
    discretion, and the factual findings in connection with it, are entitled to
    deference on appeal:
A.M. v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1,
    at para. 4. That caution is even more apposite on this sort of motion, where
    the opportunity to examine the record is even more limited than it will be on
    the appeal itself.

[27]

The father points to statements in the mothers affidavit about J.K.s
    difficulties in adjusting since the Order was made. But the mothers evidence
    taken as a whole paints a picture of J.K.s progress  not without bumps in the
    road  to building relationships with his mother and friends, accepting the
    benefits of counseling, and forming a strong basis for a continuing positive
    relationship with his father.

[28]

As it is almost two months since the Order was made, staying it would
    not preserve the
status

quo
, but would disassemble the
    structure the trial judge put in place and replace it with the very
    circumstances she found not to be in J.K.s best interests; it would run the
    risk of undoing the very benefits that the trial judge fashioned the Order to
    achieve.

[29]

Accordingly, the motion to stay is dismissed.

Security for Costs

[30]

The mother asks for security for costs. She says that the trial
    judge will likely award costs of the trial in her favour, that the father was
    not forthcoming in his financial disclosure, and that he will likely owe her
    arrears of support.

[31]

The mother relies on r. 61.06(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, which provides that security
    for costs may be ordered where, among other things, there is good reason to
    believe the appellant has insufficient assets in Ontario to pay the costs of
    the appeal. This has not been shown. The mothers evidence is that the father
    owns two properties and the trial judge found that he earns substantial income.

[32]

The motion for security for costs is dismissed.

Conclusion

[33]

Both motions are dismissed.

[34]

So that the appeal proceeds in a timely way, I direct the father to
    perfect the appeal within 30 days of todays date. The mother shall deliver her
    materials as a respondent to the appeal within 30 days thereafter.

[35]

Success on the motions was divided. No costs are ordered.

B. Zarnett J.A.

[1]

There were also financial issues, including child and spousal
    support.

[2]

The mother is not permitted to change either of the childrens
    schools during the current 2020-2021 academic year.


COURT OF APPEAL FOR ONTARIO

CITATION: Bank of Montreal v. Cadogan, 2021 ONCA 405

DATE: 20210608

DOCKET: C68958

Rouleau, Hoy and van Rensburg JJ.A.

BETWEEN

Bank of Montreal

Plaintiff (Respondent)

and

Granville Cadogan, also known as Granville Nolley Cadogan also known as
Granville N. Cadogan

Defendant (Appellant)

Granville Cadogan, acting in person

Ron Aisenberg, for the respondent

Heard: June 4, 2021 by video conference

On appeal from the judgment of Justice David E. Harris of
    the Superior Court of Justice, dated November 19, 2020, with reasons reported
    at 2020 ONSC 7102.

REASONS FOR DECISION

[1]

This appeal was dismissed with reasons to
    follow. These are our reasons.

[2]

The respondent bank commenced an action for
    damages against the appellant, who is a lawyer. The respondent alleged that the
    appellant made a knowingly false law statement under Ontarios electronic
    land registration system, when he stated, in respect of a writ of seizure and
    sale the bank had registered against the property of the appellants client,
    Ms. Watkis, that [a] complete, unconditional and unqualified release from the
    judgment creditor for this writ has been obtained. The motion judge granted summary
    judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive
    damages.

[3]

The appellant raises a number of arguments on
    appeal.

[4]

First, he submits that the motion judge erred in
    refusing an adjournment of the summary judgment motion, and then in refusing to
    permit his counsel to participate in the hearing. We do not give effect to this
    argument.

[5]

The appellant did not appear at the virtual
    hearing of the motion. Instead, a lawyer appeared on his behalf by audio only.
    The lawyer had no instructions other than to obtain an adjournment. She
    reported that the appellant was sick and could not attend. She said that she
    had been retained during the emergency measures.

[6]

Counsel for the respondent advised that he had
    received an email late the night before from a different lawyer who stated he
    had been retained by the appellant, and who had paid an outstanding costs
    award. That lawyer did not appear at the motion. The respondents lawyer also
    referred the motion judge to an unrelated matter involving the appellant in
    which the Law Society was dealing with a similar request for an adjournment
    which was denied.

[7]

The motion judge determined that the appellants
    request for an adjournment followed a pattern of obfuscation and attempting to
    put off his day of reckoning. The summary judgment motion had already been
    adjourned peremptory to the appellant eight months earlier, when the appellant
    served an affidavit from his former client the night before the hearing. The
    endorsement specified that no further adjournments would be permitted. The
    appellants lawyer was exceedingly vague about when she had been retained,
    she had not been in touch with the appellant recently, and she had no
    instructions other than to obtain an adjournment. There was no documentary
    support for the illness excuse, which would have been simple enough to obtain
    if it were true.

[8]

Whether to grant an adjournment in a civil
    proceeding is a highly discretionary decision, and the scope for appellate
    intervention is limited:
Khimji v. Dhanani
(2004), 69 O.R. (3d) 790
    (C.A.), at para. 14 (per Laskin J.A., dissenting, but not on this point). The
    inquiry on appeal must focus on whether the court below took account of
    relevant considerations in balancing the competing interests and made a decision
    that was in keeping with the interests of justice:
Toronto-Dominion Bank v.
    Hylton
, 2010 ONCA 752, 270 O.A.C. 98, at para. 37.

[9]

The appellant, although asserting that the
    adjournment was unreasonably refused, has not pointed to any circumstance that
    the motion judge failed to consider. Nor does the appellants reference on
    appeal to the pandemic provide an excuse for his non-attendance at the virtual
    hearing. There is no basis to interfere with the motion judges decision to
    refuse an adjournment in this case. He considered all of the relevant factors
    and he reasonably concluded that to grant an adjournment in the circumstances
    would permit an abuse of the courts process.

[10]

Nor would we accept the appellants fresh
    evidence on this issue. He has provided a note from a doctor, dated September
    1, 2020, that states that he treated the appellant for a bout of severe pain on
    August 2, 2020. There is no explanation for why this note, which is dated a day
    before the motion date, was not produced at the time (other than a bald
    statement that the appellant was unable to get a copy of the note to his
    counsel). In any event, the note does not explain the appellants absence from
    court on the day of the motion, one month after he had seen the doctor, and in
    the circumstances would not have affected the decision to refuse an
    adjournment.

[11]

As for the argument that the motion judge
    refused to allow the appellants counsel to participate, there is simply no
    basis for this contention. The appellants counsel made it clear she had been
    retained only to request the adjournment, that she was not prepared to argue
    the motion, and indeed she left the virtual hearing after the adjournment was
    denied.

[12]

The appellants second argument is that the
    motion judge proceeded on an evidentiary record that was incomplete and
    deficient. We disagree. None of the arguments about alleged deficiencies that
    the appellant seeks to raise on appeal related to redacted documents, missing
    materials, lack of personal knowledge, business records and the like, have
    merit. There was no missing evidence, nor was evidence ignored.

[13]

The respondent filed evidence consisting of
    three affidavits and 21 exhibits. It is too late for the appellant to submit
    evidence now, or to argue that certain documents should have been produced by
    the respondent. The appellant did not serve an affidavit of documents or
    produce any documents. Although the motion for summary judgment was outstanding
    for some time, the only evidence the appellant submitted in response to the
    motion was the affidavit of his client, Ms. Watkis, which was considered
    by the motion judge. The motion judge explained why he rejected Ms. Watkiss
    assertion that she had settled the banks judgment for $29,000, after pointing
    out the many inconsistencies in the affidavit, and why he accepted the
    respondents evidence to the contrary.

[14]

Even if there had been a settlement, it clearly
    had not been performed, as by her own account, Ms. Watkis had only paid $6,200
    to the respondent in respect of the outstanding writ. The issue before the
    motion judge was whether the appellant knowingly made a false statement that [a]
    complete, unconditional and unqualified release from the judgment creditor for
    this writ has been obtained.

[15]

The appellants own conduct was inconsistent
    with any belief that there was a release, or that any settlement had
    occurred. Rather, the appellant had contacted the respondent and its counsel on
    two occasions shortly before the transfer of Ms. Watkiss property, and on
    three occasions within weeks thereafter, regarding a payout statement or
    reducing the payout amount of the writ. As the motion judge noted, the
    appellant made no mention of anything remotely like a settlement between Ms.
    Watkis and the bank. Indeed, after the placement of the law statement on the
    registry and the transfer of the real property he sent a letter to the banks
    counsel, asking for an accounting to substantiate the amount that was required
    to remove the writ.

[16]

The motion judges conclusion that the
    appellants law statement on the electronic registry was false and must have
    been known by him to be false was fully supported by the evidence. The
    appellant has not demonstrated any reason to interfere with the judgment under
    appeal.

[17]

For these reasons, the appeal was dismissed.
    Costs to the respondent fixed at $6,650, inclusive of HST and disbursements.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Luangchaleun (Re), 2021 ONCA 398

DATE: 20210608

DOCKET: C68887

Doherty, Trotter and Thorburn JJ.A.

IN THE MATTER OF: KEVIN LUANGCHALEUN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Andrew Hotke, for the Attorney General for Ontario

Gavin S. MacKenzie, for the Person in Charge of Ontario
    Shores Centre for Mental Health Sciences

Heard: June 3, 2021 by video conference

On appeal against the disposition of the Ontario Review
    Board dated, October 13, 2020.

REASONS FOR DECISION

[1]

The Ontario Review Board (the Board) ordered the appellant detained in
    the Ontario Shores Centre for Mental Health Sciences by order dated October 13,
    2020. The appellant has been under the authority of the Board for about 11
    years. Among other conditions attached to the detention order, the Board
    allowed the appellant to live in the community in accommodation approved by
    the Person in Charge. The appellant is presently living in an approved
    accommodation. In the Boards view, residing in a controlled environment
    outside of the Hospital, but under the authority of the Board, offered the best
    hope for the appellants successful reintegration into the community.

[2]

Counsel for the appellant submits the order is unreasonable and asks
    this court to grant an absolute discharge, or alternatively a conditional
    discharge on conditions which would include a residence requirement.

[3]

Dr. Wong, the appellants treating psychiatrist, testified, that in her
    opinion, the appellant remained a significant threat to the safety of the
    public. The Board reviewed Dr. Wongs evidence (see reasons, at paras. 20-26)
    and ultimately explained why they accepted her opinion (reasons, paras. 27-30).

[4]

In its reasons, the Board acknowledged that Dr. Wong had seen
    improvement in the appellants mental condition in 2020. However, the Board
    observed, that as recently as the fall and winter of 2018/19, the appellant had
    stopped taking his medication while living in the community and used cocaine.
    He had to be readmitted to the Hospital.

[5]

Dr. Wong testified, that if the appellant received a discharge or any
    other order that would not allow him to be closely supervised and monitored in
    the community, he would probably stop taking his medication, fall away from treatment,
    and relapse into substance abuse. Dr. Wong testified, that were those events to
    occur, the appellant would be at high risk to engage in violent, criminal
    conduct, as he had in the past.

[6]

It is not this courts function to decide what disposition should have
    been made. The responsibility for making the decision lies with the Board. This
    court is charged with the responsibility of considering the reasonableness of
    the disposition arrived at by the Board: see
R. v. Owen
, [2003] 1
    S.C.R. 779.

[7]

We cannot say that the Boards disposition is unreasonable within the
    meaning of s. 672.78(1)(a). To the contrary, it rests on a reasoned acceptance
    of Dr. Wongs opinion. That opinion is amply supported in the Hospital records
    and in Dr. Wongs own observations.

[8]

The appeal is dismissed.

Doherty J.A.

G.T. Trotter J.A.

J.A. Thorburn J.A.