COURT OF APPEAL FOR ONTARIO

CITATION:
    Nettleton v. Nettleton, 2020 ONCA 753

DATE:
    20201127

DOCKET: C66888

Feldman,
    Simmons and Harvison Young JJ.A.

BETWEEN

Arnold
    Alfred Nettleton

Applicant
    (Respondent)

and

Carol
    Ann Nettleton

Respondent
    (Appellant)

Paul Buttigieg, for the appellant

Jenna Beaton and Brigitte Barsalou,
    for the respondent

Heard: November 2, 2020 by video
    conference

On appeal from
    the order of Justice Alan P. Ingram of the Superior Court of Justice, dated
    December 17, 2018, with reasons at 2018 ONSC 7262.

Simmons
    J.A.:

Introduction

[1]

The appellant, former wife, appeals from a December
    2018 change order reducing the amount of spousal support payable to her under a
    2005 separation agreement.

[2]

The respondent, former husband, brought the
    change motion following his retirement on December 31, 2016 at age 67. Although
    the 2005 separation agreement contemplated a future variation in spousal
    support following the husbands retirement, the appellant relied on her lack of
    income and an early pension payout of $581,228.32 which the respondent received
    soon after the parties 2004 separation to resist any reduction in spousal
    support.

[3]

On the change motion, the husband relied on the
    fact that his future pension entitlement had been equalized under the parties
    separation agreement. In any event, the balance of the pension payout he had subsequently
    received is in a Locked-in Retirement Account (LIRA) from which he planned to
    begin making withdrawals at age 72.

[4]

The trial judge reduced the appellants spousal support
    from $2,750 per month to $2,181 per month commencing January 1, 2017 and to $1,009
    per month commencing January 1, 2018 based on the respondents actual income in
    those years. He also ordered the respondent to provide income tax returns to
    the appellant by June 30 each year so spousal support could be adjusted to the
    high-end amount payable under the Spousal Support Advisory Guidelines (SSAGs)
    in future years. Further, 42.2 percent of LIRA withdrawals would be included in
    the respondents income for the purpose of calculating spousal support once such
    withdrawals began.

[5]

The issues on appeal include whether the trial judge
    erred in failing to impute income to the respondent based on a $167,818 cash
    component of the pension payout the respondent received in 2009; in failing to
    impute income to the respondent immediately following his retirement based on
    the highest permissible LIRA withdrawals; and in failing to consider the
    continuing economic hardship suffered by the appellant from the marriage
    breakdown.

[6]

For the reasons that follow, I would dismiss the
    appeal.

Background

[7]

The parties were married in 1981, separated in 2004 and divorced in
    2014. They had one child born in December 1985.

[8]

In May 2005, the parties entered into a separation agreement. Under the
    terms of the separation agreement, the respondent was required to pay the
    appellant $2,750 per month on account of spousal support and $800 per month on
    account of child support based on an income of $103,860 per year. The amount
    payable for spousal support was subject to variation based on a material change
    in circumstances, whether foreseeable or not. The separation agreement also
    provided that spousal support will be varied upon the husband's retirement
    based upon the needs and financial circumstances of both parties at that time
    (the retirement adjustment clause).

[9]

In addition to spousal and child support, the separation agreement required
    the respondent to pay to the appellant two amounts on account of equalization
    of net family properties: i) $80,051 representing 50 percent of the
    respondents pension valued at $160,103 as of the date of separation using a
    projected retirement age of 63.5 years; and ii) $78,641.50 representing
    equalization of the remaining assets.

[10]

However, when the respondent was only 57 years of age, the plant
    where he worked was closed as a result of corporate restructuring, and his
    pension plan was terminated as of September 2006. He found other work within
    approximately six weeks. In 2009, he received the pension plan payout totaling
    $581,228.32. He transferred the maximum eligible amount, $419,505.44, into a LIRA
[1]
and received a cash payout for the balance, including interest, totaling
    $167,818.

[11]

The respondent's obligation to pay child support terminated as of
    December 31, 2007. Following that date, the respondent paid the appellant
    $3,464 per month ($1,600 bi-weekly) for her support. As the separation
    agreement was not amended, the appellant received $714 of the monthly payment
    tax free.

[12]

In 2014, upon reaching the age of 65, the respondent applied for
    a divorce. No changes to the existing arrangements for spousal support under
    the separation agreement were made at that time.

[13]

In mid-2016, the respondent notified the appellant he intended to
    retire at the end of the year. The parties were unable to agree on a variation
    of spousal support. Accordingly, in March 2017, the respondent reduced his monthly
    spousal support payments to $671 based on his calculations of the amount
    payable under the SSAGs, having regard to his then existing retirement income and
    the appellants income (Canada Pension Plan (CPP) and rent she received from
    renting a basement apartment in her home).

[14]

The appellant then filed the separation agreement with the court
    for the purpose of enforcement. In response, the respondent brought a change
    motion in April 2017 requesting that the spousal support payable under the
    separation agreement be reduced to $671 per month effective January 1, 2017.

[15]

In
    her response to the change motion, the appellant requested that spousal support
    continue at $2,750 per month, the amount specified in the separation agreement.
    In addition, she requested that support for the years 2014-2016 be recalculated
    based on the respondent's income in those years, yielding an order for
    retroactive support in the amount of $85,404.

[16]

The
    appellant deposed that she was 64 years of age and not in receipt of any income
    other than spousal support, CPP and limited rental income. Further, she claimed
    she had been unable to generate any employment income post-separation due to
    the marriage breakdown, age, health and lack of job opportunities at that
    time. She noted that the respondent shared accommodation with his girlfriend
    who the appellant believed earned an income in excess of $100,000 per year. Further,
    although the respondent had not disclosed his pension payout when it was received,
    his material disclosed he had a substantial fund from which he could draw
    income.

The trial judges decision

[17]

The
    change motion was heard in November 2018 and the trial judges decision was
    released in December 2018. The trial judge began the analysis section of his
    reasons by observing that two provisions in the parties separation agreement
    justified a reduction in support: the material change clause and the retirement
    adjustment clause.

[18]

The
    trial judge then turned to the question whether any of the respondents pension
    accounted for in the equalization should be used in calculating spousal
    support. Two actuaries testified regarding this issue.

[19]

In
    the trial judges view, the appellants actuary effectively imported an if and
    when clause into the separation agreement. Such a clause typically permits an
    adjustment to the pension valuation once the actual retirement date is known
    rather than basing the payment on a projected retirement date. Treating the actual
    pension payout date as a retirement, the appellants actuary concluded that only
    57.8 percent of the pension had been equalized and 42.2 percent of income could
    be used for support calculations.

[20]

However,
    the respondents actuary was critical of the appellants actuarys approach, in
    particular: his use of hindsight, which could promote litigation of separation
    agreements; and his failure to recognize that the actual date of retirement was
    67 and that the respondent would not begin to receive LIRA payments until age
    72. Taking these factors into account, the respondents actuary found 85.95
    percent of the commuted value of the pension had been equalized leaving 14.05
    percent available for support calculations.

[21]

Following
    these observations about the evidence, the trial judge moved on to the issue of
    retroactive support and declined to award it. He found that the respondent had
    more than followed the separation agreement. In this regard, he noted that
    the respondent continued to pay support during the short period he was
    unemployed; raised the quantum of spousal support when he was no longer
    required to pay child support in a manner that permitted the appellant to
    receive a tax free component; and assisted the appellant in purchasing a home
    by co-signing her mortgage and providing her with $10,000 for moving expenses.

[22]

In
    the background section of his reasons, the trial judge had observed that the
    separation agreement did not require notice of changes in income in relation to
    spousal support. The appellant provided no explanation for her delay in seeking
    an adjustment to spousal support even though she had considered doing so in
    2014 at the time of the parties divorce. Further, the trial judge found that,
    given that the respondents retirement income at the time of trial was
    approximately $36,000 per year, the respondent would suffer financial hardship
    from a retroactive order. He ordered that the effective date of any change
    order be January 1, 2017.

[23]

Turning
    to the quantum of spousal support, the trial judge noted that in the retirement
    adjustment clause the parties had agreed that variation would be based on
    needs and financial circumstances.

[24]

The
    trial judge was critical of the wife for running up debts and failing to prepare
    for the time when her support would be reduced. Nonetheless, he concluded that
    she had demonstrated a need for support. On the other hand, he found the
    respondent had made prudent financial decisions and therefore had the ability
    to pay support. He concluded that such support should be paid at the high end
    of the SSAGs.

[25]

Although
    the respondent was willing to have a notional 14.05 percent of a minimum yearly
    LIRA withdrawal ($4,377) imputed to him for spousal support calculations, the
    trial judge declined to do so. Rather, he accepted that the respondents plan
    to maximize the LIRA by holding off on withdrawals until age 72 would benefit
    both parties. However, the trial judge ruled that once the respondent started
    receiving LIRA income, 42.2 percent would be considered available for
    calculating spousal support. The trial judge gave the following reasons for
    this conclusion:

·

the retirement adjustment clause stipulated varied spousal
    support should be based on the needs and financial circumstances of both parties;

·

the appellant clearly met the test for need; and

·

in
Boston v. Boston
, 2001 SCC
    43, [2011] 2 S.C.R. 413 at para. 65, the Supreme Court of Canada concluded that
    double recovery may be permitted based on need as well as compensation.
[2]

[26]

The
    trial judge found the respondent's total income for 2017 was $57,371 (including
    final employment income from 2016) and approximately $37,300 for 2018. Based on
    these findings, the trial judge ordered that spousal support be paid as
    follows, subject to credit for amounts previously paid for the relevant
    periods:

·

commencing January 1, 2017, $2,181 per month;
    and

·

commencing January 1, 2018, $1,009 per month.

[27]

The
    trial judge further ordered that the respondent provide income tax returns and
    notices of assessment to the appellant by June 30 each year to allow for
    adjustment of spousal support using the high SSAGs figure and including 42.2 percent
    of the respondents LIRA withdrawals in income for the purpose of support
    calculations.

Discussion

[28]

In
    oral argument, the appellant focused her submissions on three alleged errors by
    the trial judge, each of which she argued constituted a material
    misapprehension of the evidence and an error of law. Underlying all of these
    submissions, however, was the premise that the parties had a 23-year, long-term,
    essentially traditional marriage and that, while the respondent enjoyed an
    economic windfall rooted in the marriage arising from the early pension payout,
    the appellant suffered, and continues to suffer, economic hardship arising from
    the breakdown of the marriage. Before turning to the appellants specific
    arguments, I set out the applicable standard of review.

(1)

Standard of Review

[29]

The
    standard of review on support issues is highly deferential. Appellate courts
    should not interfere with support orders unless the reasons "disclose an
    error in principle, a significant misapprehension of the evidence, or unless
    the award is clearly wrong":
Hickey v. Hickey
,
[1999] 2
    S.C.R. 518
, 172 DLR (4th) 577, at paras. 11-12.

(2)

Did the trial judge err by failing to take account of
    the 2009 cash
payment?

[30]

The
    appellants first argument was that the trial judge erred in failing to
    consider the whole of the evidence by failing to take account of the cash pension
    payment of $167,818 the respondent received in 2009. She inferred from his
    reasons that the trial judge accepted that only 57.8 percent of that amount was
    equalized under the parties separation agreement. Given that the respondents employment
    was terminated in 2006, he would have recognized that his pension would be
    wound up and he should have given notice of his impending change in income as required
    under the child support provisions of the separation agreement. In any event, the
    windfall early payout was rooted in the marriage.

[31]

Particularly
    in the face of the economic hardship she suffered, the appellant submits that
    the trial judge should have granted her a remedy. For example, the trial judge could
    have imputed one third of 42.2 percent of the cash pension payment to the respondent
    for each of the years 2017, 2018 and 2019. Such an approach is justified under s.
    19(1)(f) of the
Child Support Guidelines
, O.
    Reg. 391/97, (the Guidelines), which permits a court to impute income when a
    spouse has failed to disclose income when under an obligation to do so and by
    analogy to the Pattern of Income provision (s. 17(1)) of the Guidelines that
    permit the spreading of income over three years.

[32]

I
    would not accept these arguments. The trial judge was well aware of the
    $167,818 pension payout the respondent received in 2009. He noted that the
    amount netted to about $96,000 after tax and that the respondent gave evidence
    about what he had done with the money. Bottom line: at the time of trial in
    2018, the money was long gone and did not form part of the respondents current
    income.

[33]

Additionally,
    the trial judge was aware that the spousal support provisions of the separation
    agreement did not require ongoing income disclosure and that the appellant had
    not requested such disclosure. The trial judge was also aware that the respondent
    had an obligation to make financial disclosure to the appellant while he was
    under an obligation to pay child support, which ended in 2007. On our review of
    the record, there is no evidence to support a finding that the respondent knew
    what would be happening with his pension while he was still under an obligation
    to pay child support.

[34]

As
    for the appellants submissions concerning the $167,818 being largely
    unequalized and a substantial windfall rooted in the marriage, I am not
    satisfied the trial judge accepted the appellants actuarys opinion concerning
    the unequalized portion of the pension. Rather, when he adopted the 42.2
    percent future LIRA payment ratio, he acknowledged that to some extent he would
    be double dipping (in other words ordering that support be paid from a
    portion of the respondents pension that had already been equalized). The basis
    for doing so was because of the appellants need and the respondents ability
    to pay.

[35]

In
    the end, I am not satisfied that, on the facts of this case, the trial judge
    made any error in failing to reach back nine years to impose some form of
    retroactive support order to account for the fact that, in 2009, the husband had
    received a one-time cash pension payout, a significant portion of which had
    already been subject to equalization.

(3)

Did the trial judge err by misapprehending the actuarial evidence
    concerning the respondents projected LIRA income?

(4)

Did the trial judge err by failing to consider the whole of the evidence
    including the economic hardship suffered by the appellant and the tools
    available for imputing income?

[36]

The
    appellants second and third arguments are interrelated. They will therefore be
    considered together.

[37]

As
    her second argument, the appellant contends that the trial judge erred by
    failing to recognize that some of the actuarial evidence was premised on the
    respondent making only minimum annual LIRA withdrawals (or subsequently
    Registered Retirement Income Fund (RRIF) withdrawals). The appellant submits
    that the trial judge failed to recognize that the respondents access to his LIRA
    (and later his RRIF) was not limited to the minimum withdrawal amount. Rather,
    he could withdraw higher amounts annually, and do so immediately, as regulated by
    the Financial Services Commission of Ontario. As a result, the appellant
    submits that the trial judge erred by failing to recognize that the respondent
    could withdraw more than the annual minimum from his LIRA and could have
    commenced doing so as soon as he retired.

[38]

As
    her third argument, the appellant contends that, in all the circumstances of
    this case, the trial judge erred in failing to recognize it was open to him to immediately
    impute annual LIRA (or RRIF) withdrawals to the respondent. The appellant
    submits that this was necessary in order to relieve the economic hardship being
    suffered by the wife due to her lack of income, a factor that had been
    compounded by the husbands failure to give notice of the 2009 cash payment he
    received. Particularly since the respondent was sharing living expenses with a
    partner and had failed to disclose the partners income, the appellant submits
    the trial judges failure to impute a higher level of income to the respondent
    and/or to order support in excess of the high end SSAGs was not only the result
    of misapprehensions of the evidence but clearly wrong.

[39]

I
    would not accept these arguments. On my reading of his reasons, the trial judge
    was fully aware of the fact that there was a minimum withdrawal threshold for
    the LIRA once the respondent turned 72 and that it was open to him, as trial
    judge, to impute income to the respondent before the respondent began making
    LIRA or RRIF withdrawals.

[40]

The
    trial judge recognized the minimum nature of the LIRA withdrawal requirements when
    he noted at para. 53 of his reasons that the respondent will be forced to take
    out a minimum of 5 percent annually upon reaching age 72. He also implicitly acknowledged
    his ability to immediately impute income to the respondent when he declined the
    respondents suggestion that 14.05 percent of a notional annual pension income,
    calculated by the respondents actuary ($4,377), be imputed immediately. As I have
    said, the trial judge declined this suggestion because he concluded the
    respondents plan to hold off on withdrawals until age 72 would ultimately
    benefit both parties.

[41]

The
    trial judge was also well aware of the appellants dependence on the respondent
    for income and her demonstrated need for support. He said so explicitly in his
    reasons. However, he also noted that the appellant had used her equalization
    payment to purchase a house, that she still had the house at the time of trial
    and that she had taken no steps to prepare for the respondents retirement and
    resulting reduction in his income and ability to pay spousal support.

[42]

As
    a result of these circumstances, the trial judge ordered an amount for support
    premised on the respondents actual income, but at the high end of the SSAGs
    and including 42.2 percent of the respondents LIRA income to calculate spousal
    support once the respondent began receiving it. The decision to order high end
    SSAGs support recognized the long-term nature of the marriage as well as the
    appellants needs. The decision to include 42.2 percent of the respondents actual
    LIRA withdrawals in his income to calculate spousal support responded to the appellants
    economic hardship by double-dipping, at least to some extent. The decision not
    to impute LIRA income earlier or at a higher level than the respondents actual
    withdrawals reflects the trial judges overall assessment of the parties
    circumstances. I find no error in principle or misapprehension of the evidence
    in the trial judges reasons nor do I consider his order clearly wrong.

Disposition

[43]

Based
    on the foregoing reasons, I would dismiss the appeal. As agreed by the parties,
    I would make no order for costs of the appeal.

Released: K.F. November 27, 2020

Janet
    Simmons J.A.

I
    agree. K. Feldman J.A.

I
    agree. Harvison Young J.A.

[1]
Close to the date of trial, the LIRA had a value of approximately
    $570,298.98.

[2]
See
Boston
, at
    paras. 64-65. In general,
Boston
requires a court to focus on the unequalized
    portion of a payors pension when considering spousal support. However, double
    recovery can be permitted in some circumstances.


COURT OF APPEAL FOR ONTARIO

CITATION: Norris v. Starkman, 2020 ONCA 744

DATE: 20201124

DOCKET: C68264

van Rensburg, Hourigan and Brown
    JJ.A.

BETWEEN

David
    Allen Norris

Applicant
    (Respondent)

and

Paul Starkman and Starkman Professional Corporation

c.o.b. Starkman Barristers

Respondents
    (Appellants)

Paul H.
    Starkman, acting in person and for the appellant Starkman Professional
    Corporation c.o.b. Starkman Barristers

David Allen Norris, acting in person

Heard: November 16, 2020 by video conference

On appeal from the order of Justice Dale
    Parayeski of the Superior Court of Justice, dated March 11, 2020.

REASONS FOR DECISION
    (corrected)

[1]

The appellant, Paul Starkman, a lawyer, appeals,
    together with his law firm, from the application judges order dated March 11,
    2020 directing the assessment of 14 accounts rendered by Starkman Barristers
    from January 18, 2008 to July 25, 2019 (the Order) pursuant to the
Solicitors
    Act
, R.S.O. 1990, c. S.15 (the Act). The Order was obtained by the
    respondent, David Norris, who states that he is the sole director, officer, and
    shareholder of Sirron Systems Inc.

[2]

The appellant advances two main grounds of
    appeal.

[3]

First, Mr. Starkman submits that the application
    judge erred in treating Mr. Norris as the client. He argues his client was not
    Mr. Norris but his corporation, Sirron Systems.

[4]

Only one of the accounts for which an assessment
    was directed was included in the appeal record: an unspecified account dated June
    9, 2017. That account was addressed to both the respondent, David Norris, and
    Sirron Systems. The appeal record contained copies of seven other accounts:
    January 11, 2017; February 2, 2017; March 7, 2017; May 10, 2017; two other
    accounts dated June 9, 2017; and July 27, 2017. All those accounts were also
    addressed to both Mr. Norris and Sirron Systems.

[5]

Mr. Starkman acknowledged that, in the
    circumstances, it was open to this court to add Sirron Systems as an applicant
    client on the assessment. We do so.

[6]

Second, Mr. Starkman submits that the
    application judge erred by ordering an assessment of certain accounts for which
    Mr. Norris did not establish the special circumstances required by s. 4 of the
    Act.

[7]

In oral argument, Mr. Starkman acknowledged that
    Mr. Norris did not need to demonstrate special circumstances in order to obtain
    the assessment of the last three accounts listed in the Order: June 27, 2019;
    July 18, 2019; and July 25, 2019. Consequently, we do not interfere with that
    part of the Order.

[8]

However, Mr. Starkman submitted that the
    application judge erred in holding that special circumstances existed in
    respect of the remaining accounts, which spanned the period January 18, 2008
    until January 11, 2019 (the Remaining Accounts). It is difficult to discern
    from the application judges brief oral ruling his grounds for finding that
    special circumstances existed for those accounts. However, it appears he was
    under the impression that proceeds from a May 2019 settlement of litigation
    between Sirron Systems and Scott and Pichelli, amounting to approximately
    $112,500 (the Settlement), were used to pay those accounts.

[9]

As became clear during the appeal, the
    application judge was mistaken on that point. Prior to the Settlement, Mr.
    Norris had not disputed the accounts rendered by the appellants.  A dispute
    arose over the amount of the Settlement that should be used to pay some of the
    appellants unbilled work in progress. That dispute only concerns the
    appellants accounts rendered in June and July 2019. Accordingly, the dispute
    about the allocation of the Settlement could not constitute a special
    circumstance for directing the assessment of the Remaining Accounts.

[10]

Mr. Norris contends that the factors set out in
    para. 30 of his factum constitute special circumstances supporting the
    assessment of the Remaining Accounts. We disagree that those factors amount to
    special circumstances for those Remaining Accounts to which s. 4 of the Act
    applies or justifies the exercise of the application courts inherent jurisdiction
    for those Remaining Accounts to which s. 4 does not apply:
McCarthy Tétrault
    LLP v. Guberman
, 2012 ONCA 679, [2012] O.J. No. 4694, at para. 8. The factors
    do not explain why an assessment should be directed for old accounts,
    previously paid, for which the record discloses no protest by Mr. Norris or his
    company at the time of payment.

[11]

Consequently, we allow the appeal in part and
    vary the Order as follows:

(i)

Para. 1 is varied to direct an assessment only
    on the last three accounts: the accounts dated June 27, 2019; July 18, 2019;
    and July 25, 2019 (the Assessable Accounts);

(ii)

Para. 2 is varied to order that Sirron Systems
    Inc. be added as an applicant client on the assessment; and

(iii)

Para. 3 is varied to order the appellants to
    provide to Mr. Norris and Sirron Systems Inc., within 30 days of the release of
    these reasons: (i) copies of the Assessable Accounts; (ii) the dockets for all
    work billed in the Assessable Accounts; (iii) statements of account or trust
    ledgers that demonstrate how the Settlement funds were allocated to each of the
    Assessable Accounts; and (iv) all documents supporting the work that was
    performed and billed in the Assessable Accounts.

[12]

Given the mixed success on the appeal, we do not
    order any costs of the appeal nor do we interfere with the application judges
    order that no costs were payable by anyone in respect of the application.

K.
    van Rensburg J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


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. C.S., 2020 ONCA 752

DATE: 20201127

DOCKET: C61147

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.S.

Appellant

Alexander Ostroff, for the appellant

Eric. W. Taylor, for the respondent

Heard: June 23, 2020 by video
    conference

On appeal
    from the conviction entered on October 23, 2008, and the sentence imposed on
    January 21, 2015, by Justice John R. Sproat of the Superior Court of Justice.

Coroza J.A.:

A.

BACKGROUND

[1]

On October 23, 2008, after trial by judge alone in Superior Court of Justice, the appellant was found guilty of sexually assaulting and sexually interfering with his girlfriend's daughter, A.P., contrary to ss. 271 and 151, respectively, of the Criminal Code, R.S.C. 1985, c. C-46. He was also found guilty of assaulting his girlfriend's other two daughters, C.M. and E.M., contrary to s. 266.

[2]

The incidents occurred between November 2006 and
    January 2007, when the appellant, P.M. (the appellants girlfriend at the time,
    and the mother of A.P., C.M. and E.M.), and the children lived together in a
    house in Brampton, Ontario. The appellants sister L.S., her husband W.B., and
    their daughter K. also lived in the home during this time period.

[3]

On January 9, 2007, the police were contacted by
    the Childrens Aid Society (CAS) in connection with allegations that the
    appellant or P.M. physically assaulted P.M.s children. The same day, A.P. was
    interviewed by the police. The focus of the interview was on discipline in the
    home. At the end of the interview she was asked if anyone had done anything to
    make her uncomfortable and she said, No. The next day, A.P. disclosed to K.
    that the appellant had touched her. K. disclosed this to L.S. and they
    contacted the police. A.P. was brought back for a second interview on January
    11, 2007.

[4]

During the second interview A.P. was upset that
    K. had disclosed their conversation. A.P. reluctantly told the police that the
    appellant had touched her in her private parts a few times. She also recounted
    one specific incident where the appellant asked her to stay home from school,
    removed her clothes, showed her a book of pornography, and licked her vagina. This
    police statement was a vital part of the Crowns case.

[5]

L.S. and K. testified at trial and provided
    direct and circumstantial evidence that the appellant had hit the children by
    slapping them in the face sometime in December 2006.

[6]

After the trial, the Crown instituted dangerous
    offender proceedings pursuant to s. 753. The appellant was not a first
    offender. For example, in 1990, he pled guilty to several charges of sexual
    abuse of his step-daughter.

[7]

The dangerous offender proceedings were delayed
    because the appellant fired his trial counsel and suffered a debilitating stroke
    in 2013. At the hearing, the appellant argued that his severe disabilities
    following his stroke demonstrated that he was not a significant threat to the
    community. He suggested that he should not be designated a dangerous offender
    but that he be designated a long-term offender under s. 753.1. Alternatively,
    he argued that if he was designated a dangerous offender, he should receive a
    fixed sentence with a period of long-term supervision pursuant to s. 753 (4)(b).

[8]

The trial judge released written reasons on
    January 21, 2015. The trial judge was satisfied beyond a reasonable doubt that
    the appellant met the criteria for a dangerous offender designation, and he
    imposed an indeterminate sentence.

B.

GROUNDS OF APPEAL

[9]

The appellant appeals his convictions and seeks
    a new trial. He advances five grounds of appeal. He contends that the trial
    judge erred by:

(i)

failing to give sufficient reasons on the sexual
    assault count;

(ii)

using A.P.s initial police statement to bolster
    the credibility of the sexual abuse allegations that she made in her second
    police statement;

(iii)

failing to consider evidence with respect to
    A.P.s credibility, in particular evidence supporting the defence theory of her
    motive to fabricate;

(iv)
relying too
    heavily on the demeanour of A.P.; and

(v)

improperly taking judicial notice of the knowledge and behaviour of
    children in the context of sexual abuse absent expert evidence.

[10]

Should his appeal from conviction fail, the appellant
    also argues that the trial judge improperly imposed an indeterminate sentence. The
    appellant submits that the trial judge completely ignored the vast majority of
    the expert evidence regarding his risk of re-offending given his physical disabilities.
    According to the appellant, this evidence supported a determinate sentence and
    a long-term supervision order.

[11]

For the reasons that follow, I would dismiss
    both appeals.

C.

SUMMARY OF FACTS

[12]

In order to place the appellants arguments in
    context, I will provide a brief summary of the material facts. The Crown case
    consisted of evidence from L.S., W.B., K., and A.P.
[1]
The defence called no
    evidence.

(1)

The Living Arrangements

[13]

L.S. and her family lived with the appellant,
    P.M., and P.M.s children, for two months (November 2006 to January 2007). A.P.,
    who was ten years of age, slept in her own room upstairs.

[14]

P.M. did not work and looked after the three
    children. L.S. worked during the day. K., who was 14 at the time, was not
    attending school. The appellant worked nightshifts at Walmart.

[15]

The adults in the home were all aware that the
    appellant had previously been convicted of sexual assault.

(2)

The Christmas Concert Incident of December 18,
    2006

[16]

L.S. testified that during the morning of a
    Christmas concert on December 18, 2006, she heard the appellant shout at the
    children in the kitchen. She also heard a sound that she described as a
    smack. She heard the children crying and saw that C.M. and E.M. were both
    bleeding from the mouth and the appellant was wiping the blood away.

[17]

K. also witnessed this event. She testified that
    the appellant hit the children because he had found empty cups of pudding and
    the children had denied consuming the pudding. She testified that the appellant
    slapped C.M. and E.M. in the face.

(3)

The Incident of December 27, 2006

[18]

On December 27, 2006, the appellant confronted P.M.
    and W.B. (L.S. husband) because he believed that they had slept together. The
    confrontation turned physical, and P.M. called the police. It was around this
    time that the appellant left the home. By January 4, 2007, P.M. asked L.S. and
    her family to leave. It was not disputed that A.P. was very upset about this
    decision because she had become close to K. According to A.P., she looked up to
    K. as an older sister.

(4)

The Disclosure of January 2007

[19]

In January 2007, the police were contacted by CAS
    to investigate an allegation that either the appellant or P.M. had physically
    assaulted P.M.s children.

[20]

On January 9, 2007, A.P. was interviewed by a
    police officer in response to that allegation. At the time of the interview she
    was ten. During her interview, she told the police officer that she was afraid
    of the appellant because he barged into her room. She also disclosed that she
    saw him slap her sisters, C.M. and E.M. When asked by the police officer if the
    appellant had touched her private parts, and whether the appellant had done
    anything to make her feel uncomfortable, she answered No.

[21]

The following day, during a phone call, A.P.
    told K. that the appellant had touched her inappropriately. K. told her mother
    and they contacted the police.

[22]

On January 11, 2007, A.P. was brought back to
    the police and interviewed a second time. The interviewing officer advised A.P.
    that K. had advised her mother about the phone call. A.P. expressed displeasure
    at K. revealing that she had spoken to her.

[23]

During this interview, A.P. disclosed that the
    appellant had touched her private parts a few times including one day when he
    asked her to stay home from school. According to A.P., she stayed home from
    school and the appellant showed her pornography and licked her vagina. He also
    showed her his private parts. A.P. said that the appellant had given her a
    product called EY jelly and directed her to hide this item between the
    mattresses of her bed. At the time her mother was not home and had gone to the
    mall.

[24]

A.P. told the officer that her mother was not
    home all the time because she would go to the mall. A.P. also stated that the
    appellant would come to her at night and in the morning.

[25]

A.P. acknowledged during cross-examination that
    she wanted to live with K. and that she was angry with the appellant because
    she believed he had stolen a camera that he gave her as a gift.

[26]

A.P. was also confronted about her failure to
    disclose the allegations during her first interview and she acknowledged that
    she lied to the officer during the first interview when she was confronted
    about whether or not anyone had made her feel uncomfortable.

(5)

The School Records

[27]

On consent, A.P.s school records were admitted
    for the truth of their contents. The records included an entry that disclosed
    that A.P. had signed out of first period on December 4 at 9:05 a.m. A telephone
    call was made by the school to her home and the records noted that a male said
    A.P. could come home.

D.

POSITIONS OF THE PARTIES AT TRIAL

[28]

The Crown argued that A.P had to have been
    telling the truth about the assaults because she provided specific and lurid
    details about the sexual activity that were well beyond what a ten-year-old
    child could possibly have known.

[29]

The Crown relied on this courts decision in
R.
    v. Khan
(1998), 42 C.C.C. (3d) 197 (Ont. C.A.), affd [1990] 2 S.C.R. 531.
    In
Khan (ONCA)
, Robins J.A. observed, at p. 210, that young children
    are generally not adept at fabricating tales of sexual perversion and are
    manifestly unlikely to use their reflective powers to concoct a deliberate
    untruth, and particularly one about a sexual act which in all probability is
    beyond their ken. The Supreme Court of Canada reiterated that the fact that
    the young complainant in that case could not be expected to have knowledge of such
    sexual acts imbue[d] her statement with its own peculiar stamp of reliability.:
Khan
(
SCC)
, at p. 548.

[30]

The Crown argued that the inconsistency between
    the two video statements was understandable because A.P. was reluctant to say
    anything to the police in the first statement out of fear that her mother would
    punish her. There were parts of that first statement that clearly showed that
    A.P. was holding back evidence and wanted to say more.

[31]

Defence counsel at trial argued that that the
    inconsistency between the first and second statement was significant and could
    not be reconciled. She submitted that A.P. had decided to fabricate her
    allegations during the telephone call with K. According to defence counsel,
    A.P. did so for the purpose of living with K. However, once A.P. realized that
    K. had disclosed their conversation to the police she was stuck with this lie
    and was forced to maintain the lie.

E.

THE TRIAL JUDGES REASONS

[32]

The trial judge found that A.P., L.S. and K.
    were credible and reliable witnesses.

[33]

The trial judge found that while the household
    may have been very busy, the appellant did have an opportunity to periodically
    commit acts of sexual touching and the acts described by A.P. on the day she
    stayed home from school. First, he found that while P.M. had young children,
    that did not mean that she never went out of the home. Second, he found that although
    K. may have often been at home in the morning did not mean that she was home
    each and every morning.

[34]

In assessing A.P.s credibility, the trial judge
    observed that A.P. gave every indication of being a truthful witness in the
    first statement. However, in the second statement, A.P. was very reluctant to
    divulge evidence and was upset that K. had disclosed their conversation.

[35]

The trial judge also highlighted that during the
    second statement A.P. disclosed the following specific details in connection
    with the sexual activity:

·

the appellant had shown her a book of
    pornography;

·

the appellant had given her EY jelly as a
    sexual lubricant;

·

she described the appellant licking her private
    parts; and

·

the appellant was holding his penis and asking
    for 5 more minutes.

[36]

The trial judge viewed A.P.s description of the
    sexual activity as credible and reliable because there was no evidence that
    such lurid description of sexual activities would have been planted in A.P.s
    mind. He noted that there was no evidence that A.P. had ever been previously
    exposed to any sexually explicit material. He found that there was also no
    evidence that A.P. ever discussed sex with K. Finally, while the trial judge
    accepted that while there may have been knowledge in the household that the
    appellant had been in jail or had a criminal record, A.P. appeared to be
    genuinely surprised when it was revealed that the record related to sexual
    assaults and the trial judge rejected the suggestion that she knew about this
    prior to her disclosure.

[37]

The trial judge acknowledged that there was an
    inconsistency between the first and second statements. However, from his
    perspective, there were aspects of this first statement that were significant
    only with the benefit of hindsight. After reviewing specific portions of the
    first statement, he found that A.P. was not trying to get her mother in trouble
    in the statement and that the focus of the first statement was on the means by
    which A.P. and the other children in the home were disciplined. He found that A.P.
    had told her mother that the appellant had asked her to stay home from school
    and that her mother did not believe her. This may have made A.P. reluctant to
    disclose what had happened during the first statement.

[38]

He addressed the inconsistency in the following
    way:

[A]s I said, there are references in the
    January 9
th
transcript which only, with the benefit of hindsight,
    indicate quite clearly that A.P. had something else to say and specifically
    indicate that there was something she wanted to say about the day she was asked
    by the accused to stay home. So I take that into account not as a prior
    consistent statement somehow enhancing credibility, but explaining what was
    said to be an inconsistency that diminished credibility.

[39]

In the end, he found A.P. was a credible and
    reliable witness and he was satisfied beyond a reasonable doubt that: sexual
    touching had taken place on more than one occasion; and that the appellant had
    asked A.P. to come home from school and sexually assaulted her.

[40]

With respect to the counts of assault involving
    the other two children, C.M. and E.M., the trial judge was satisfied that
    appellant had assaulted them based on the circumstantial evidence provided by
    L.S. and the direct evidence of K.
[2]
Accordingly, he found the appellant guilty of the two counts of assault, in
    addition to the counts of sexual assault and sexual interference in relation to
    A.P.
[3]

F.

DISCUSSION

[41]

The appellant and the respondent agree that the
    core issue at trial was the credibility of A.P.s allegations.

[42]

Indeed, each ground of appeal advanced by the
    appellant is really a complaint about how the trial judge dealt with the
    credibility and reliability of A.P.s evidence. In my view, the appellant is
    asking this court to re-visit the trial judges careful credibility findings in
    the absence of any overriding and palpable error. Respectfully, I see no basis
    to interfere with the trial judges credibility assessment. Very high deference
    is owed to his credibility findings:
R. v. Vuradin
, 2013 SCC 38,
    [2013] S.C.R. 639, at para. 11;
R. v. Aird
, 2013 ONCA 447, 307 O.A.C.
    183, at para. 39; and
R. v. George
, 2016 ONCA 464, 349 O.A.C. 347, at
    para. 35.

Ground #1: The Trial Judge Failed to give
    Sufficient Reasons on Count 1

[43]

Count 1 on the indictment alleged that the
    appellant sexually assaulted A.P. between November 2006 and January 2007. After
    noting that A.P. was a credible and reliable witness, the trial judge found the
    appellant guilty of this count because he was satisfied that A.P. very
    clearly testified to sexual touching in addition to the incident when she
    returned home from school.

[44]

The appellant argues that the trial judge
    provided insufficient reasons in connection with the first count. He advances
    two submissions.

[45]

First, the appellant contends that the trial
    judge failed to resolve contradictory evidence regarding whether there were
    opportunities for him to commit the offence. On the one hand, A.P.s evidence was
    that the sexual assaults would occur when he would sneak into her room in the
    evening and touch her while she wore a nightdress. On the other hand, L.S. and
    K. testified that the appellant worked a night shift at Walmart. The appellant
    submits that the trial judge did not explain how this evidence could be
    reconciled.

[46]

I see nothing in this submission. The trial
    judge recognized that the appellant worked a night shift. However, this did not
    mean he did not have the opportunity to commit the offence.

[47]

A.P. told the police that the appellant had
    touched her a few times in addition to the incident when she returned home
    from school and her mother was not home. The trial judge accepted her evidence.
    In my view, the trial judges finding that there were opportunities to commit
    sexual assault in addition to the incident when A.P. returned home from school
    was firmly anchored in the evidence. That evidence included the following:

·

A.P. told the police officer in the second
    interview that the appellant used to come out at night
and
come out in the morning; and

·

K. testified that the appellant worked
most
times at night but when he arrived home the
    appellant would wake the girls up to go to school.

[48]

The appellant also submits that the trial judge
    failed to resolve a contradiction between evidence of the appellants work
    schedule and evidence provided by K. who testified that A.P. told her that the
    abuse took place almost every night when A.P. would go to bed. I disagree. The
    trial judge expressly noted and reviewed K.s evidence on this point in his
    reasons:

When A.P. told her what the accused had been
    doing, A.P. said it was over the whole time she lived at Ashurst. The accused
    never behaved inappropriately to [K.] and in re-examination [K.] said that when
    A.P. reported it happened over the whole time, she did not say that it happened
    every night.

[49]

The trial judge resolved the evidence. He was
    entitled to accept that K. had clarified her evidence in re-examination:
R.
    v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 148, and it is
    obvious from his reasons that he found that there was no contradictory
    evidence. Furthermore, I note that this apparent contradiction was of limited
    value because A.P. was never confronted during cross-examination with her prior
    statement to K. about how often and at what time of day the sexual assaults
    took place.

Ground #2: The Trial Judge Improperly Used
    A.P.s Police Statements

[50]

A.P.s second statement to the police was not
    consistent with her first statement, in which she denied that the appellant
    touched her private parts. The appellant argues that the trial judge erred by
    finding that the significance of the inconsistency was reduced or explained
    based on his finding, with the benefit of hindsight, that A.P. had more to
    say during the first statement. The appellant submits that this error led the
    trial judge to improperly use the absence of any sexual abuse allegation in
    A.P.s first statement to bolster her credibility when assessing the second
    statement.

[51]

I agree with the appellant that the trial
    judges comment that A.P. had something else to say in the first statement is
    speculative. Although the trial judge set out several examples of what he
    believed were instances of A.P. wanting to say more about the appellant, the
    fact is that A.P. acknowledged in her cross-examination that she was sort of lying
    to the police in the first statement. Further, there was no direct evidence
    that she wanted to say more about the assaults during her first interview.

[52]

That said, if this was an error, it was of no
    great moment. The trial judge expressly stated that he was not using these two
    statements as prior consistent statements, to bolster A.P.s credibility. Instead,
    what the trial judge found is that because the first statement was not
    complete, the significance of the inconsistency was reduced. Although the
    underlying premise for that finding is problematic, I am satisfied that the trial
    judges impugned comments were made to simply respond to the defence argument
    that there was an inconsistency that could diminish the weight of her testimony
    and he did not use it to add to her credibility.

[53]

A fair reading of the trial judges reasons reveals
    that his reasoning process was focused on squarely dealing with defence
    counsels submission that A.P. was motivated to fabricate all the allegations
    for the purpose of living with K. and because she disliked the appellant. The
    trial judge explained in detail why he accepted what A.P. was saying in her
    second statement. In his view, it was A.P.s ability to recount lurid and
    specific details of sexual activities and the absence of any prior exposure to
    explicit sexual information that would plant ideas in her mind that made A.P.s
    allegations credible and reliable. The trial judge noted:

In the second statement she was quite emphatic
    that she was telling the truth. I have considered the defence theory of this
    but there is no evidence that she was exposed to explicit sexual information or
    material that would assist her to come up with this fabrication. I agree she
    had a very strong motive to dislike or even hate the accused. She wanted him in
    jail but I think if this motivation was animating A.P., I would have expected
    her to be a lot more forthcoming about her allegations against the accused and
    I would have expected the complaint to have described acts that would be much
    more straightforward than the complaint that was made.

[54]

In the end, the trial judge dealt specifically
    with the defence theory, and provided several cogent reasons as to why he found
    A.P. to be credible and reliable. The trial judges comments in relation to his
    finding that A.P. had more to say in her first statement, to find that the impact
    of the inconsistency between the two statements was reduced, occasioned no
    prejudice.

[55]

I would not give effect to this ground of
    appeal.

Ground #3: The Trial Judge Failed to Consider
    Evidence with respect to A.P.s Credibility

[56]

The appellant argues that the trial judge failed
    to consider other significant evidence with respect to A.P.s credibility.

[57]

Specifically, the appellant says the trial judge
    ignored K.s testimony that, one week before the A.P. disclosed the sexual
    assaults, A.P. told K. that she would call the police if the appellant returned
    home to reunite with P.M. The appellant states that the trial judge erred by
    not addressing this evidence in his credibility assessment.

[58]

It is well established in the jurisprudence that
    a trial judge does not have to mention every piece of evidence that could
    diminish the credibility of a witness. Nor does a trial judge have to respond
    to every argument advanced by counsel and provide an entire treatise on their
    reasoning process:
R. v. A.M.
, 2014 ONCA 769, 123 O.R. (2d) 536, at
    paras. 13-14;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras.
    17-18.

[59]

From my review of his reasons, the trial judge
    noted that defence counsel had elicited that A.P. wanted to live with [K.],
    talked about going to live with them. K.s motivation to live with K.s family
    was the primary submission advanced by defence counsel. As long as the trial
    judge grappled with the substance of the live issues at trial, failure to
    mention each and every inconsistency or piece of evidence does not constitute
    error:
R.E.M.
, at para. 64.

[60]

The following exchange between the trial judge
    and defence counsel during closing submissions highlights that the trial judge
    was alive to the live issue raised by defence counsel:

THE COURT: [Defence Counsel], let me just ask
    you a question, just so I make sure I've got this straight. So, what you're
    saying is, she lied to [K.]. And, but your theory is she was genuinely
    surprised that [K.] had reported to the police, but once she did she was stuck
    with the lie and, therefore, she followed through?

[Defence Counsel]: Yes.

THE COURT: All right. So, your theory, in
    effect is, by telling [K.] it would get back to [L.S.] and arrangements would
    be made sort of for her to be able to go and live with them without the police
    being involved?

[Defence Counsel]: Yes.

THE COURT: Okay.

[Defence Counsel]: Spot on. Where was I, Your
    Honour?

[61]

Against this backdrop, when the reasons are read
    in their entirety the trial judge covered the evidence with respect to A.P.s
    credibility. From my review of the reasons, the trial judge exhaustively dealt
    with several arguments advanced by defence counsel as to the factors that
    impacted on A.P.s credibility.

[62]

I would reject this ground of appeal.

Ground #4: The Trial Judge Improperly Used Demeanour
    Evidence

[63]

The appellant argues that the trial judge
    improperly relied on demeanour evidence to enhance A.P.s credibility. First,
    he takes issue with the trial judges observations that there was nothing in
    A.P.s demeanour that suggested to him that she was not attempting to be
    truthful and that A.P. was quite emphatic that she was telling the truth in
    the second statement.

[64]

I do not accept this submission.

[65]

First, there is nothing wrong with a trial judge
    expressing an impression of how a young witness has testified in assessing
    their credibility: see
R. v. J.J.B.
, 2013 ONCA 268, 305 O.A.C. 201, at
    para. 112. Read fairly, the trial judges reasons reveal that he was
    referencing A.P.s age (ten years old) when she provided her two videotaped
    statements. She was a child, and the trial judge was entitled to assess her
    ability to perceive and recall as a child:
R. v. B. (G.)
, [1990] 2
    S.C.R. 30, at pp. 54-55.

[66]

Second, the trial judge cautioned himself that
    he should not place undue reliance on demeanour in his credibility assessment
    and stated that he did not attach too much significance to it. This caution
    belies any suggestion that he was using demeanour evidence improperly.

[67]

The appellant also argues that the trial judge
    unfairly made no reference to A.P.s hostile testimonial demeanour or her reluctance
    to speak about her dishonesty or other events that presented her in a negative
    light. He submits that the trial judge unfairly ignored the hostile nature of
    A.P.s presentation during cross-examination and was uneven in his assessment.

[68]

While I agree with the appellant that
    testimonial demeanour can be a proper consideration in the evaluation of a
    witnesss credibility, the trial judges silence on this point does not amount
    to reversible error. It is difficult for this court to assess this submission
    because this court does not have the benefit that the trial judge did in
    viewing the demeanour of A.P. during the critical exchanges with defence
    counsel. Even assuming that the demeanour of A.P. was hostile to counsel during
    cross-examination, the testimonial demeanour of A.P. certainly was not a
    material issue raised by defence counsel. Indeed, the silence of defence
    counsel on this point during closing submissions fortifies my conclusion that
    A.P.s testimonial demeanour during cross-examination played no or at best, a
    peripheral role in this trial.

[69]

I would reject this ground of appeal.

Ground #5: The Trial Judge Improperly took
    Judicial Notice

[70]

The appellant complains that the trial judge
    improperly took judicial notice on two occasions in his reasons.

[71]

First, he takes issue with the trial judge
    relying on
Khan (ONCA)
for the point that young children are generally
    not adept at fabricating tales of sexual perversion. The appellant argues
    that this led the judge to undermine the defence theory by making findings
    about the knowledge and behaviour of children in the context of sexual abuse
    without any expert evidence.

[72]

Second, the appellant complains that the trial
    judge improperly undermined the defence theory that it was incredible that A.P.
    would lie and stay home from school if she was in fact a victim of repeated
    sexual abuse and disliked the appellant. The trial judge did so by stating that
    it is common knowledge that very often victims subject themselves to repeated
    assaults, and that [y]ou only need to look at the Law Reports to see that
    that is a common occurrence where assaults take place over a period of time and
    complainants simply find themselves unable to make a report.

[73]

I disagree with these submissions.

[74]

Judicial notice dispenses with the need for
    proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts
    judicially noticed are not proved by evidence under oath. Nor are they tested
    by cross-examination. Therefore, the threshold for judicial notice is strict
:
    R. v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.

[75]

Turning to the first submission, the trial judge
    was not taking judicial notice of how young children behave; he was simply
    noting this courts comments in
Khan (ONCA)
, that young children are
    generally not adept at fabricating tales of sexual perversion and comparing
    the observation made by Robins J.A. in that case with the evidence in this
    case. The following passage from the trial judges reasons shows that he was
    not taking judicial notice. After citing
Khan (ONCA)
, the trial judge
    stated:

I did a computer search to look at cases that
    quoted this passage. All of the cases I found involved children much younger
    than ten years old. I make this point because as far as I am concerned, the
    rationale that Justice Robbins [
sic
] has referred to, continues to
    have application, although with less force as a child grows older.

But in every case it is
    important to consider the evidence in the particular case.
There is no evidence here of A.P. being exposed to sexually
    explicit material. There is no discussion with [K.] about sex. [Emphasis added.]

[76]

In this case, the trial judge reasoned that A.P.s
    account was credible and reliable because there was no evidence that A.P. had
    been exposed to sexual literature; she did not know what he had been charged
    with; and there was no evidence that she knew what a lubricant was. The trial
    judge was not dispensing with facts. I agree with the respondents submission
    that the trial judge was instead, through a reasoned process, drawing on
Khan
    (ONCA)
as a roadmap for determining whether A.P.s evidence was credible
    and reliable.

[77]

The appellants second submission is also
    unpersuasive. In my view, the trial judge was responding to the questionable
    assertion advanced by defence counsel during her closing address that A.P.
    would not have decided to stay at home from school to be with the appellant if
    she had previously been abused by him or disliked him. Although it was not put
    exactly in these terms, I view the trial judge as expressing his disagreement
    with this submission because there are several reasons why, even if sexual
    abuse occurred, A.P. would have stayed home from school. As the Supreme Court
    of Canada has noted there is no inviolable rule on how people who are the
    victims of trauma like sexual assault will behave:
R. v. D.D.
, 2000
    SCC 43, [2000] 2 S.C.R. 275, at para. 65. The Supreme Court expressed its
    opinion that trial judges should routinely instruct juries with this common
    sense proposition. Indeed, juries are typically instructed about this fact
    without the need for expert evidence. A trial judge cannot be faulted for
    expressing the same proposition in reasons for judgment on a judge alone trial.
    I view his comments as nothing more than an alternate way of expressing this
    proposition and he did not require expert evidence as a foundation for his
    observations.

[78]

I would dismiss this ground of appeal.

G.

APPEAL FROM INDETERMINATE SENTENCE

[79]

Pursuant to s. 759, the appellant appeals the
    trial judges determination that he should serve an indeterminate sentence. The
    appellant was not a first offender. Significantly, his record includes several
    convictions from 1990 when he pled guilty to several charges involving the
    sexual abuse of his step-daughter, including sexual intercourse with a female
    under 14 years of age. The abuse had occurred over multiple years.

[80]

Following the appellants conviction for the
    offences with respect to A.P., C.M., and E.M., the Crown sought a dangerous
    offender designation pursuant to s. 753.1. The hearing began in 2010 and
    continued over a span of four years. The hearing was delayed for a number of
    reasons including the appellant suffering a stroke that left him visually
    impaired and impacted on his mobility.

[81]

At the hearing the Crown relied on the
    assessment of Dr. Wilkie, a staff psychiatrist at the Centre of Addiction and
    Mental Health (CAMH). The defence called Dr. Gojer (a psychiatrist) and
    relied on two additional reports from Dr. Lipson (a physiatrist) and Dr.
    Ranalii (a neuro-ophthamologist).

[82]

In comprehensive reasons released in January
    2015, the trial judge declared the appellant to be a dangerous offender and
    imposed an indeterminate sentence of detention in the penitentiary.

[83]

Dangerous offender proceedings are sentencing
    proceedings and involve a two-stage process  a designation stage and a penalty
    stage:
R. v. Spilman
, 2018 ONCA 551, 362 C.C.C. (3d) 415, at paras. 24-28.

[84]

No issue is taken with the trial judges
    decision, at the first stage, to designate the appellant as a dangerous
    offender.

[85]

During the penalty stage, the hearing judge is
    required to consider imposing one of three options for sentencing as set out in
    s. 753 (4), namely:

a)

impose a sentence of detention in a penitentiary
    for an indeterminate period;

b)

impose a sentence for the offence for which the
    offender has been convicted  which must be a minimum punishment of
    imprisonment for a term of two years  and order that the offender be subject
    to long-term supervision for a period that does not exceed 10 years; or

c)

impose a sentence for the offence for which the
    offender has been convicted.

[86]

Section 753 (4.1) also provides the hearing
    judge guidance as to how to exercise his discretion. That provision requires a
    hearing judge to examine the evidence adduced at the hearing to determine
    whether there was a reasonable expectation that a lesser measure  a
    conventional fixed-term sentence or a fixed-term sentence of at least two years
    followed by a long-term supervision order  will adequately protect the public
    against the risk that the offender will commit murder or a serious personal
    injury offence:
Spilman
, at para. 30.

[87]

In his reasons for judgment, the trial judge made
    the following findings:

In this case, my discretion not to declare C.S. a dangerous
    offender depends on whether I am satisfied that the stroke-related consequences
    have so diminished C.S.'s functional abilities that the risk he presents can be
    reduced to an acceptable level through the long term offender provisions.
The vague, impressionistic evidence regarding
    the extent to which the stroke has impaired C.S.'s functions falls far short of
    satisfying me that there is a reasonable possibility of eventual control in the
    community of the risk proposed by C.S.
[Emphasis added.]

[88]

The appellants appeal as to sentence pursuant
    to s. 759 is a narrow one. He submits that the trial judge erred in finding
    that there was no reasonable possibility of eventual control in the community
    by ignoring the expert evidence that suggested he was left severely disabled as
    a result of his stroke. The appellant argues that the evidence pointed to only
    one reasonable conclusionthat he was no longer a significant threat to the
    community.

[89]

In my view, the findings set out above were
    clearly open to the trial judge and his credibility and factual findings made
    in determining the appropriate sentence are entitled to deference. The
    submissions advanced on this sentence appeal repeat what was argued at the
    dangerous offender hearing. While the standard of review on a s. 759 appeal is
    somewhat more robust than other sentence appeals, it is not a hearing
de
    novo
:
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 26.

[90]

The trial judge correctly identified that the
    only real issue at the hearing was whether the appellants stroke had left the
    appellant so disabled that he would lack the capacity to reoffend based on the
    need for constant care and supervision within the community, at a location
    where he would have to reside with little to no access to children. He decided
    this issue in favour of the Crown. In my view, there was ample evidence to
    support the trial judges conclusion.

[91]

First, Dr. Wilkie found him to be highly
    exploitive, callous and manipulative. Dr. Wilkies opinion was also that the
    appellant met the diagnostic criteria of having antisocial personality disorder
    and pedohebephiliaa sexual preference for pre-pubescent aged females. In
    relation to the issue of whether, from a psychiatric perspective, the appellant
    was treatable and whether treatment offered any reasonable possibility that his
    risk could be managed within the community, Dr. Wilkie concluded that his
    prognosis was extremely poor.

[92]

Second, Dr. Wilkie addressed the appellants
    stroke and the impact it may have had on her conclusion that the appellants
    risk could not be managed. She testified that pedohebephilia is a persistent
    trait that would not be affected by stroke related impairments, although it may
    affect his ability to act on his preferences and drives. While she acknowledged
    that the appellant required some assistance in daily living, the nature and extent
    of the required assistance was not clear. She could not discount his ability to
    enter into a domestic relationship by reason of his stroke.

[93]

Third, while Dr. Gojer questioned whether the
    appellant was at a high risk to reoffend, Dr. Gojer agreed that he was not an
    expert on functional abilities and was relying on Dr. Lipsons report. The
    trial judge made strong findings against Dr. Lipsons report and found
    that it was almost boilerplate. The trial judge concluded that the report was
    not a comprehensive assessment of [the appellants] functional abilities or a
    report regarding his future residential care needs. In his view, Dr. Lipsons
    report only gave him a vague idea of the appellants functional abilities.

[94]

In my view, the trial judge carefully balanced
    all the relevant considerations including the appellants antecedents, his
    ongoing needs, and the paramount objective of the protection of the public from
    his high risk to reoffend against children. There is no basis to interfere with
    the trial judges decision to impose an indeterminate sentence.

[95]

I would dismiss the sentence appeal.

H.

DISPOSITION

[96]

For these reasons I would dismiss the appeals.

Released: D.W. November 27, 2020

S.
    Coroza J.A.

I
    agree. David Watt J.A.

I
    agree. Harvison Young J.A.

[1]
A.P.s evidence consisted of her testimony and two statements that
    were admitted under s. 715.1.

[2]
Although the appellants Notice of Appeal seeks a new trial on all
    counts, there were no submissions made by counsel for the appellant in relation
    to the two counts of assault in his factum or during oral argument.

[3]
The Crown did not proceed with Count 3 of the indictment.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cabral, 2020 ONCA 728

DATE: 20201112

DOCKET: C68414

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Cabral

Appellant

Elliott Willschick, for the appellant

Emily Marrocco, for the respondent

Heard and released orally: November 6, 2020 by
    video conference

On appeal from the sentence imposed on May 28, 2020 by
    Justice Enno J. Meijers of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appeal is dismissed as moot. The appellant has served his custodial sentence.

[2]

We are not persuaded that there are any factors beyond this particular
    case that warrant a consideration of the effect of the continuing pandemic on
    sentencing principles, particularly, because this court has recently opined on
    the issue: see
R. v. Larivie
re
, 2020 ONCA 324. This is the
    central question that the appellant submits remains relevant.

[3]

The appeal is therefore dismissed.

K. Feldman J.A.

Janet Simmons J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davis, 2020 ONCA 748

DATE: 20201126

DOCKET: C67507

Fairburn A.C.J.O., Huscroft and
    Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neil Davis

Appellant

Delmar Doucette and Zahra Shariff,
    for the appellant

Lisa Mathews, for the
    respondent

Heard: November 4, 2020

On appeal from the conviction entered on
    April 23, 2019, and the sentence imposed on May 9, 2019, by Justice David S. Rose
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of trafficking cocaine, possession of
    cocaine for the purpose of trafficking, and possession of the proceeds of crime,
    and sentenced to a term of 20 months imprisonment. He appeals from conviction
    and sentence.

[2]

The appellant says that
    the trial judge:

1)

erred in his
    assessment of the appellants credibility;

2)

erred in denying his
    request for a change in venue; and

3)

erred in finding that
    the police had reasonable and probable grounds to arrest him and in finding
    that he was not searched unreasonably.

[3]

The appeal is dismissed for the reasons that follow.

The appellants credibility

[4]

During the course of an unrelated investigation into shoplifting, the
    appellant was observed making what appeared to be a drug transaction with an
    individual, Ms. Bennett. He was arrested after Detective Borovskis observed a
    second suspected drug transaction at a different location. He was found with $5,000
    in cash and approximately one ounce of crack cocaine stored in a pouch on his
    waistband.

[5]

The trial judge rejected the appellants testimony, finding that
    he was not credible. The appellant raises eight bases for challenging the trial
    judges credibility assessment. Some he describes as misapprehensions of the
    evidence, others as unreasonable findings.

[6]

The appellants argument invites this court to parse the trial judges
    credibility findings on a word-for-word basis. This is contrary to
R. v.
    Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19, where the court said:

This Court has consistently admonished trial
    judges to explain their reasons on credibility and reasonable doubt in a way
    that permits adequate review by an appellate court. Having encouraged these
    expanded reasons, it would be counterproductive to dissect them minutely in a
    way that undermines the trial judges responsibility for weighing all of the
    evidence. A trial judges language must be reviewed not only with care, but
    also in context. Most language is amenable to multiple interpretations and characterizations.
    But appellate review does not call for a word-by-word analysis; rather, it
    calls for an examination to determine whether the reasons, taken as a whole,
    reflect reversible error. The task is to assess the overall, common sense
    meaning, not to parse the individual linguistic components.

[7]

Although the court went on to say that a court of appeal could not
    abdicate its responsibility to review the record to see if the findings of fact
    were reasonably available, it does not follow that the trial judges reasons
    are to be parsed in the manner reflected in the appellants submissions. The
    trial judge listed multiple reasons for not accepting the appellants
    testimony. Read as a whole, those reasons amply support his credibility
    findings.

[8]

The trial judge accepted the appellants admission that he had drugs
    secreted down his pants as an admission against interest but did not accept the
    rest of his evidence concerning what happened on the day of the arrest. He
    found that the appellants evidence was unworthy of belief and that it did
    not raise a reasonable doubt.

[9]

None of the matters raised by the appellant rises to the level of a
    palpable and overriding error that would allow this court to intervene. Errors
    in describing the way in which the appellants criminal record were disclosed
    and the appellants reasons for renting a car were minor in nature. It was not
    unreasonable for the trial judge to conclude that shortcomings in the
    appellants memory of the events including the details of his car rental, his
    interaction with Ms. Bennett in the parking lot, and how well he knew one Mr.
    DAcosta undermined his credibility. Nor was it unreasonable for the trial
    judge to find that both the appellants story of a planned meeting with an
    unnamed landlord about renting an apartment and his explanation for the $5000
    in cash he had with him were implausible. These were calls for the trial judge
    to make and we are not persuaded that there is any basis to interfere with
    them.

[10]

This
    ground of appeal must be rejected.

Denial of the change of venue request

[11]

The trial judges decision denying the appellants request for a
    change of venue from the Central East Region to the Central West Region reveals
    no error and is entitled to deference. As the trial judge noted, the appellant
    did not raise any concern about venue when he scheduled a trial date within the
    Central East Region and raised no concerns about venue until several months
    later, on the day the trial was set to begin.
[1]
The trial judge found that there was no prejudice to the appellant and accepted
    the Crowns submission that, regardless of whether the appellant waived his s.
    11(b)
Charter
rights, the public interest was in hearing the case
    given the age of the case and the delay a change in venue would have occasioned.
    These findings were reasonable and were open to the trial judge on the record
    before him.

[12]

This
    ground of appeal must be rejected.

The arrest and search

[13]

At
    trial, the appellant argued that his arrest was the result of racial profiling.
    The trial judge carefully considered this argument and rejected it, concluding
    that he had no difficulty finding that Detective Borovskis had reasonable and
    probable grounds to arrest the appellant. The police were investigating a
    series of thefts and their investigation led to Ms. Bennett, who then led them
    to the appellant. Grounds to arrest the appellant developed over the course of
    hours. Racial profiling played no part in the appellants arrest.

[14]

On
    appeal, the appellant does not allege error in the trial judges analysis in
    this regard. The matter was not raised in the notice of appeal. The appellant described
    his submissions on this point on appeal as contextual in nature and reasonably
    accepts that if the grounds for the arrest were sufficient, no question of
    racial profiling arose.

[15]

We are satisfied that the trial judge did not err in finding that
    Detective Borovskis had subjective grounds for arresting the appellant and that
    those grounds were objectively reasonable. The police observed two people they
    had under surveillance stand outside the door on the drivers side of the
    appellants car at a shopping plaza, after which they walked back to their car
    with something in hand. The police arrested them and found a crack pipe and 3.3
    grams of crack cocaine, but no money. We agree with the Crown that the grounds
    for arresting the appellant were enhanced when the police observed a similar
    event when the appellant was parked at another plaza  a person walked up to
    his car door and reached into it before walking away quickly. Although a hand-to-hand
    transfer was not observed, Detective Borovskis, who has considerable experience
    in drug-related investigations, thought that these were exchanges of drugs for
    money and his view was objectively reasonable. There was ample basis for
    arresting the appellant after not one but two transactions consistent with drug
    trafficking were observed.

[16]

As
    to the search, the appellant acknowledges that if the original arrest and
    search incident to arrest were lawful, then there was a reasonable basis to
    conduct a strip search.

[17]

We
    have already concluded that the appellants arrest was lawful. The search
    incident to arrest occurred at the scene of the arrest and involved an officer
    reaching into the appellants waistband and pulling out a bag of contraband.
    The grounds for doing so arose from the uncontroverted fact that the appellant
    was seen placing that bag into his underwear just prior to his arrest. The
    trial judge found that this search involved nothing more than an officer
    reaching into the waistband portion of the underwear and pulling out the
    drugs. No clothes were removed at the scene of the arrest. As the trial judge
    put it: By all accounts it was a very brief single action.

[18]

The
    trial judge concluded that the search incident to arrest and the recovery of
    the contraband at the scene of the arrest were s. 8
Charter
compliant.
    We see no error in his analysis.

[19]

The
    appellants argument respecting the strip search  conducted at the police
    station  must be considered against this backdrop.

[20]

Considered
    against the fact that the appellant had been seen placing contraband in his
    underwear, and against confirmation of that fact arising from the search
    incident to arrest, we see no error in the trial judges conclusion that the
    strip search was reasonable in the circumstances.

[21]

The
    appellant argues that the strip search was more invasive than necessary. We
    disagree. The trial judge found that the search was conducted in under
    three minutes, by officers of the same gender, in a private room, and that
    there was no evidence of anything more than a visual inspection of the
    appellants genitals and anal areas. The trial judge noted that the appellant
    said the same in his evidence, although he was otherwise an incredible witness.

[22]

The
    appellant offers no basis for disturbing these findings on appeal. The trial
    judge found that the search was conducted in accordance with the guidelines set
    out by the Supreme Court in
R. v. Golden
, 2001 SCC 83, [2001] 3
    S.C.R. 679, at para. 101, save in one respect: the absence of a record of the
    manner in which the search was conducted. Although the police should have kept
    a proper record respecting the reasons for and the manner in which the strip
    search was conducted (
Golden
, at para. 101), the trial judge
    found that this was a minor deviation from the
Golden
guidelines,
    insufficient to found a
Charter
breach. We agree.

[23]

These
    grounds of appeal must be rejected.

Sentence

[24]

The
    appellant argues that the trial judge erred in failing to credit him with 39
    days pre-trial custody and an additional three months credit for time spent on
    strict bail conditions.

[25]

The trial judge found 11 days of pre-trial custody: 3 days
    between his original arrest on these charges and receiving bail and another 8
    days credited for the time spent in custody after his bail on this matter was
    cancelled. The appellant was credited a total of 16 days for this combined
    period of pre-trial custody.

[26]

The appellant argues that the trial judge erred by failing to
    grant him another 39 days credit for the time he spent in custody between when
    his sureties in this matter filed their revocation form and when the bail was actually
    cancelled by the trial judge on the day of sentencing submissions. We do not
    agree.

[27]

During that entire period of time, the appellant was detained on
    other, unrelated charges. Indeed, the surety revocation was filed within days
    of those charges being laid and the appellant being taken into custody on them.
    Although the appellants bail in this matter was not cancelled for many weeks
    later, he remained in custody on the other charges.

[28]

While credit for pre-trial custody can be assigned where there is
    a sufficient link or relation between the offence for which the offender is
    being sentenced and the pre-sentence custody and the link may exist with
    respect to more than one offence (see
R. v. Barnett
, 2017 ONCA 897, 138
    O.R. (3d) 401, at paras. 30-31), determining whether any such link exists is a
    matter of discretion for the trial judge. We see no error in the trial judges
    approach here.

[29]

There
    is no evidence that the failure to cancel the bail had any impact on the
    failure to not seek new bail on the charges that triggered the detention order.
    Notably, once the trial judge became aware that there were new charges that the
    appellant was detained on, and that the sureties had filed a revocation form,
    the trial judge revoked the bail and assigned credit from that day forward.

[30]

This
    was a discretionary call and we would not interfere.

[31]

Finally,
    the appellant argues that the trial judge erred in calculating credit for time
    the appellant spent under curfew, a condition that was part of his bail. The
    appellant submits that the impact of curfew is self-evident and that he should
    have been given credit for three months.

[32]

The
    trial judge had no evidence to support trial counsels claim that the curfew
    amounted to infantilization of the appellant. He acknowledged that the curfew
    limited the liberty of the accused but found that the limit was mitigated by
    the appellants entitlement to be out of his residence in the company of a
    surety. He properly treated the curfew as a mitigating factor on sentence and
    reduced the appellants sentence by two weeks.

[33]

We
    see no error that warrants interference with the trial judges discretionary
    decision as to how much credit should be given. The trial judge considered that
    the limitations on the appellant were a far cry from house arrest and limited
    the reduction to two weeks. This was his call to make and his decision is
    entitled to deference.

Conclusion

[34]

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

Fairburn
    A.C.J.O.

Grant Huscroft
    J.A.

B.W. Miller
    J.A.

[1]
The appellant initially brought an application challenging the
    courts jurisdiction over this matter. Following dismissal of this application,
    the appellant applied to the Superior Court of Justice for writs of prohibition
    and
procedendo
, with
certiorari
in aid. This application was
    dismissed and the dismissal was upheld on appeal: see
R. v. Davis
, 2018 ONSC 4630, affd 2018
    ONCA 946. On resumption of the trial, the appellant brought the change of venue
    application that is the subject of this appeal. For completeness, we note that
    the appellant also brought an application seeking a declaration that the trial
    judge lost jurisdiction over the matter and seeking an order of prohibition
    against the trial judge on the basis of an alleged reasonable apprehension of
    bias. This application was also dismissed: see
R. v. Davis
, 2019 ONSC 1847.