COURT OF APPEAL FOR
    ONTARIO

CITATION: Woods (Re),
    2021 ONCA 190

DATE: 20210329

DOCKET: C68774 &
    C68940

Tulloch, Huscroft and
    Thorburn JJ.A.

DOCKET: C68774

IN THE MATTER OF:
    Joanne Woods

AN APPEAL UNDER PART
    XX.1 OF THE CODE

DOCKET: C68940

AND BETWEEN

Her Majesty the Queen

Appellant

and

Joanne Woods

Respondent

Michael Davies, for the appellant (C68774), Joanne Woods

Dena Bonnet and Emily Marrocco, for the appellant
    (C68940) and respondent (C68774), Her Majesty the Queen

Anita Szigeti and Maya Kotob, for the
    respondent (C68940), Joanne Woods

Leisha Senko, for the respondent (C68774 & C68940),
    Person in Charge of Centre for Addiction and Mental Health

David Humphrey and Michelle Biddulph, for the respondent
    (C68940), Ontario Review Board

Amy Ohler and Eric Neubauer, for the intervener
    (C68940), Criminal Lawyers Association (Ontario)

Heard: March 12, 2021 by videoconference

On
    appeal from the disposition of the Ontario Review Board dated October 8, 2020,
    with reasons dated October 15, 2020 (C68774).

On appeal from the judgment of
    Justice Patrick J. Monahan of the Superior Court of Justice, dated November 6,
    2020, with reasons reported at 2020 ONSC 6899, 152 O.R. (3d) 595, granting
certiorari
to quash the ruling of the Ontario Review Board, dated July 31, 2020, holding
    it had jurisdiction to conduct a disposition review hearing under Part XX.1 of
    the
Code
by videoconference without the accuseds consent (C68940).

Tulloch J.A.:

A.

INTRODUCTION

[1]

On May 9, 2012, the court found Ms. Woods not criminally
    responsible on account of mental disorder (NCRMD or NCR) for charges of
    uttering a threat to cause death or bodily harm, and possession of a weapon for
    a dangerous purpose. She has been under the jurisdiction of the Ontario Review
    Board (the ORB or the Board) ever since.

[2]

In May 2020, the ORB announced that it would hold all of its
    hearings remotely, by videoconference, due to the COVID-19 pandemic. Ms. Woods
    annual disposition hearing was initially scheduled for May 29, 2020. Ms. Woods did
    not consent to proceeding by videoconference and sought to adjourn her hearing
    until the Board could convene in person.

[3]

After a two-month adjournment, on July 31, 2020, the Board held
    that the hearing could proceed by videoconference, without Ms. Woods consent
    and despite her objections. Ms. Woods served and filed an application to quash
    the Boards decision in the Ontario Superior Court. Notwithstanding r. 43.03(5)
    of the
Criminal Proceedings Rules for the Superior Court of Justice
    (Ontario),
SI/2012-7

which suspends the proceedings before the
    Board once Ms. Woods had served and filed a Notice of Application to quash,
    unless a judge permits the proceedings to go ahead
[1]
 the Board held a disposition hearing by videoconference on September 28,
    2020. Just over a week later, on October 8, 2020, the Board ordered Ms. Woods
    detained at the General Forensic Unit at the Centre for Addiction and Mental
    Health (CAMH), subject to conditions.

[4]

Prior to this order, since April 2017, Ms. Woods had been living
    in the community under a conditional discharge.

[5]

Monahan J. heard Ms. Woods application to quash on November 6,
    2020. On November 23, 2020, Monahan J. issued a writ of
certiorari
and
    quashed the Boards July 31, 2020 decision to conduct its proceedings by videoconference,
    for want of jurisdiction. He held that Part XX.1 of the
Criminal Code,
R.S.C., 1985, c. C-46
,
which governs the NCR regime, did not
    authorize the Board to convene by videoconference without the consent of the
    accused. The parties agreed that this decision only affected the Boards
    jurisdictional ruling on July 31, 2020, and not the disposition order rendered
    on October 8, 2020.

[6]

The Crown appeals Monahan J.s
certiorari
order, while
    Ms. Woods appeals the order of the Board setting aside her conditional
    discharge and entering a detention order.

[7]

For the reasons that follow, I would dismiss the appeal of the
certiorari
application. The Board did not have jurisdiction to proceed by videoconference
    without the consent of the NCR accused. It follows that the Board rendered Ms. Woods
    October 8, 2020 disposition order without jurisdiction. The disposition is
    therefore null and void for want of jurisdiction.

[8]

Accordingly, it is unnecessary to address the merits of Ms.
    Woods appeal of her disposition order in great detail. Suffice to say, even if
    I had reached a different conclusion on the merits of the
certiorari
appeal, the disposition order would still be void because the Board conducted
    its disposition hearings in violation of r. 43.03(5).

[9]

It is my understanding that Ms. Woods is currently detained at
    the hospital. She has had another disposition hearing in the interim, heard on
    December 8, 2020 and decided on January 13, 2021. The Board continued
    her detention order in that disposition:
Woods (Re),
[2021] O.R.B.D.
    No. 104. However, this detention order rests on a faulty foundation given that the
    Board entered the original detention order without jurisdiction.

[10]

Thus, the detention order is quashed, and Ms. Woods conditional
    discharge is reinstated. I would return the matter to the Board to be heard by
    a different panel as soon as practicable.

B.

BACKGROUND AND OVERVIEW

[11]

As noted above, in May 2020, the ORB announced that it would hold
    all of its hearings remotely, by videoconference, due to the COVID-19 pandemic.
    In this announcement, the Boards Chair also noted that this manner of
    proceeding may give rise to arguable inconsistencies with the
Code
,
    and individuals with any misgivings could apply to have their matter
    adjourned.

[12]

Ms. Woods annual disposition hearing was initially scheduled for
    May 29, 2020. Ms. Woods attended the hearing, represented by counsel.
    She did not consent to the hearing proceeding by videoconference and sought an
    adjournment until the parties could schedule an in-person hearing. The Board
    granted the adjournment and scheduled a new hearing date for July 31, 2020.

(a)

The ORBs Ruling on Jurisdiction

[13]

By the time of Ms. Woods adjourned hearing date on July 31,
    2020, the ORB was still not convening for in-person hearings. The hearing
    proceeded by videoconference.

[14]

Counsel for Ms. Woods filed a notice of application submitting
    that the Board lacked jurisdiction to hold the hearing by videoconference
    without her consent. She argued that s. 672.5(13)
[2]
of the
Criminal Code
only allows the Board to proceed by videoconference
    if the accused so agrees. Additionally, counsel for Ms. Woods pointed
    out that s. 672.81(1),
[3]
which imposes a mandatory review of dispositions after twelve months, is not
    absolute and that adjournments are a reasonable justification for an extension
    of that time period.

[15]

The Crown argued that s. 672.81(1) requires the Board to fulfill
    its statutory duty to hold a hearing within twelve months of the last
    disposition and that this duty takes priority over any consent required by s.
    672.5(13). The Crown also submitted that the current public health emergency
    rendered s. 672.5(13) inoperative in the circumstances. Finally, the Crown
    argued that the Board is entitled to govern its own process.

[16]

The Board, in an oral ruling, dismissed the application and
    denied Ms. Woods request for a further adjournment. It held that the
    Board had the authority to proceed by videoconference notwithstanding s.
    672.5(13) and Ms. Woods objections.

[17]

In reasons released on August 25, 2020, the Board decided that an
    overall review of s. 672.5 and the Boards Rules of Procedure indicates that
    the ORB has wide latitude in deciding how its hearing procedures are to be
    governed with a fundamental goal of securing the just determination of the
    real matters in dispute. It further held that requests to extend the twelve-month
    review by way of adjournment would be assessed on a case-by-case basis.

[18]

In the case at hand, the Board found that another adjournment was
    unreasonable because there appeared to be significant live issues concerning
    the hospitals ability to manage Ms. Woods illness and substance use, and
    these issues needed to be resolved in a timely manner. The Board also observed that
    there was no evidence that a denial of an in-person hearing occasioned any
    unfairness to Ms. Woods.

[19]

Since an in-person hearing was not possible while COVID-19 continued
    to pose a risk, the Board reasoned that Ms. Woods was, in effect, seeking to
    postpone her annual disposition hearing indefinitely. The Board noted that it
    was tempting to conclude that Ms. Woods refusal to consent was a not so
    subtle manoeuvre to delay her hearing so that she can remain on a conditional
    discharge and maintain her current privileges without change. The Board
    reasoned that an interpretation of s. 672.5(13) that would permit Ms. Woods to
    delay the annual disposition hearing indefinitely would lead to an absurd
    result, since it would prevent the Board from fulfilling its statutory mandate.

[20]

Based on the foregoing, the Board denied Ms. Woods request for
    an adjournment. The hearing was ordered to take place as soon as practicable. The
    Board found that it had the authority to proceed in Ms. Woods absence, even if
    she did not consent to a hearing by videoconference, under s. 672.5(10)(a).
[4]

(b)

The Continuation of Ms. Woods Hearings

[21]

On August 28, 2020, the Board reconvened. Counsel for Ms. Woods
    informed the Board that she had filed and served an application to quash the
    Boards July 31, 2020 jurisdictional decision in the Superior Court. She took
    the position that r. 43.03(5) of the
Criminal Proceedings Rules
applied and suspended the proceedings. In the alternative, counsel for Ms.
    Woods asked the Board to recuse itself on the basis of a reasonable
    apprehension of bias. The Board disagreed on both counts and commenced the
    hearing. It did not have enough time to hear all the evidence, so the matter
    was again adjourned to a later date.

[22]

A differently constituted panel convened by videoconference on
    September 28, 2020.
[5]
Ms. Woods did not attend this hearing. Counsel for Ms. Woods did not have
    instructions to proceed in Ms. Woods absence and asked for a further
    adjournment to either obtain instructions or seek advice from the Law Society
    as to whether she could participate as counsel without instructions.
[6]
The Board ordered that the hearing proceed in Ms. Woods absence, citing s. 672.5(10)(a),
    notwithstanding that her counsel could not participate without her instructions.
    It heard evidence from the hospital and a psychiatrist regarding Ms. Woods
    current medical condition, needs and circumstances. Counsel for Ms. Woods did
    not, and could not, make submissions or cross-examine any of the witnesses
    without instructions from her client.

[23]

On October 8, 2020, the Board issued its disposition. It set
    aside Ms. Woods conditional discharge and entered a detention order.

(c)

Ms. Woods
Certiorari
Application

[24]

A month later, on November 6, 2020, Monahan J. heard Ms. Woods
    writ of
certiorari
application to quash the Boards July 31, 2020
    decision to proceed by videoconference without her consent. In reasons released
    on November 23, 2020, Monahan J. allowed the application and quashed the
    Boards July 31, 2020 decision, holding that the Board acted without legal
    authority.

[25]

At the outset, Monahan J. noted that the Boards jurisdiction is
    defined and limited by the
Criminal Code
. The default rule in s.
    715.21 of the
Criminal Code
provides that a person who appears at,
    participates in, or presides at a proceeding shall do so personally. Monahan
    J. found that personally means that criminal proceedings must proceed in the
    physical presence of the accused.

[26]

Monahan J. turned his analysis to Part XX.1 of the
Criminal
    Code,
which governs the NCRMD regime. He noted that an iteration of the default
    rule entitling accused individuals to an in-person hearing is found in s.
    672.5(9).
[7]
Subsection 672.5(10) goes on to list specific circumstances where the
    accused may be absent from the hearing.

[27]

Monahan J. noted that only s. 672.5(10)(a)
[8]
could apply, which provides that the Board may permit the accused to be absent
    during the whole or any part of the hearing on such conditions as the court or
    chairperson considers proper. However, Monahan J. found the word permit in
    s. 672.5(10)(a) to be premised on the accused having waived the right to an
    in-person hearing. In other words, Monahan J. found that the Board could not
    rely upon s. 672.5(10)(a) to proceed in the absence of an accused without their
    consent; s. 672.5(10)(a) only applies where the accused has waived her right to
    be present.

[28]

Lastly, Monahan J. found that Part XX.1 specifically addresses
    the Boards ability to proceed by videoconference in s. 672.5(13), and that
    provision requires the accuseds consent.
[9]

[29]

After his review of the statutory framework, Monahan J. concluded
    that the Boards decision ignored the clear and unambiguous language of ss.
    672.5(9) and (13), which provide the NCR accused with a right to an in-person
    hearing.

[30]

Monahan J. also pointed out that the Board failed to consider
    whether it was, in fact, possible to hold a hearing in person. At the time,
    there was no legal rule or public health recommendation that prevented the
    Board from convening in person.

[31]

More broadly, Monahan J. reasoned that it is open to Parliament,
    and not the Board, to determine whether to amend s. 672.5(13) and grant the
    Board authority to conduct a disposition review hearing by videoconference over
    the objections of the accused. As I return to below, Parliament did not do so
    in its recent amendments to the
Criminal Code
, which expanded the circumstances
    under which trials and other criminal proceedings may take place by videoconference.

C.

ANALYSIS

[32]

The central question in the Crowns appeal of Monahan J.s
certiorari
order is the correct interpretation of Part XX.1 of the
Criminal Code.
The
    Crown asks this court to find that the Board has jurisdiction to conduct its
    proceedings by videoconference without the consent of the NCR accused. This
    jurisdiction, according to the Crown, derives from the Boards statutory
    regime, its core mandate, and its governing practice directions. The Crown
    further submits that the exercise of this jurisdiction is reasonable in light
    of the global pandemic. Notably however, the Crown conceded in the hearing that
    this jurisdiction is rooted in the Boards legal framework; put another way, the
    Crown also argues that the jurisdiction to hold proceedings by videoconference,
    without the NCR persons consent, exists regardless of COVID-19.

[33]

For the reasons that follow, I disagree. The Boards conclusion
    about the boundaries of its jurisdiction is incorrect. The statutory regime
    provides no authority for the Board to conduct its hearing by videoconference
    without the consent of the NCR accused. The Boards decision was not justified
    when one considers the legal constraints under Part XX.1 of the
Criminal
    Code
.

[34]

Again, the Boards proceedings were suspended once counsel for
    Ms. Woods filed and served the notice of application to quash in the
    Superior Court pursuant to r. 43.03(5). The Board nonetheless proceeded to
    convene by videoconference without Ms. Woods consent and without her counsel
    participating. It subsequently entered a detention order on October 8, 2020. This
    disposition was made without jurisdiction from the
Criminal Code,
and
    in direct contravention of the
Criminal Proceedings Rules.
The
    detention order would be null and void on both accounts.

[35]

The COVID-19 pandemic cannot justify a clear departure from the
    terms of the
Criminal Code.
The Board is a creature of statute and its
    powers are strictly circumscribed by the
Criminal Code.
The Board
    cannot expand its jurisdiction based on a sense of perceived urgency to act
    outside its statutory authority. Given the liberty interests at stake and the
    unique vulnerabilities of the NCR accused, the rights provided in the
Criminal
    Code
and the principles of natural justice must be zealously guarded in
    disposition hearings, even in the face of a global pandemic. Ms. Woods is
    entitled to an in-person annual disposition hearing unless and until the
Criminal
    Code
says otherwise.

(1)

The Standard of Review

[36]

The parties appeared before Monahan J. on an application for a
    writ of
certiorari. Certiorari
is an extraordinary remedy that derives
    from the supervisory jurisdiction of the Superior Court over a tribunal of
    limited jurisdiction. For parties in criminal or quasi-criminal proceedings,
certiorari
is available to address alleged jurisdictional errors; that is, when a
    court or tribunal either (a) fails to observe a mandatory provision of a
    statute or (b) acts in breach of the principles of natural justice:
Bessette
    v. British Columbia (Attorney General),
2019 SCC 31, [2019] S.C.J. No. 31,
    at para. 23. The standard of review is correctness:
Ontario (Attorney
    General) v. Taylor,
2010 ONCA 35, 98 O.R. (3d) 576, at para. 16.

(2)

Statutory Interpretation of Part XX.1 of the
Criminal Code

[37]

Whether the Board failed to observe a mandatory provision of the
Criminal
    Code
is a question of statutory interpretation. In Canada, it is trite law
    that the modern approach to statutory interpretation requires that the words
    of an Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Bell ExpressVu Ltd. Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[38]

The starting point is to determine the ordinary meaning of the
    text. The ordinary meaning refers to the understanding that spontaneously
    comes to mind when words are read in their immediate context and is the
    natural meaning which appears when the provision is simply read through:
R.
    v. Wookey
, 2016 ONCA 611, 531 O.A.C. 13, at para. 25;
Pharmascience
    Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 30; and
Canadian
    Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn
., [1993] 3 S.C.R.
    724, at p. 735.

[39]

After establishing an initial impression, the court must consider
    and draw inferences from the Act

as a whole. This includes related
    provisions and the overall scheme.
It is presumed that the
    legislature is competent and well informed, that it uses language consistently,
    and that the provisions in the Act collectively form a coherent scheme:
Ruth
    Sullivan,
Sullivan and Dreidger on the Construction of Statutes
, 4th ed.
    (Markham: Butterworths, 2002), at pp. 162-63 and 186-87;
Ordon Estate
v
.
    Grail
, [1998] 3 S.C.R. 437, at para. 60.

[40]

There is also a presumption against tautology:
R.
    v. Gallone,
2019 ONCA 663, 147 O.R. (3d) 225, at
    para. 31.
That presumption instructs that the legislature avoids
    superfluous or meaningless words, that it does not pointlessly repeat itself or
    speak in vain: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Markham: LexisNexis, 2014), (Sullivan), at p. 211, citing
Attorney
    General of Quebec v. Carrières Ste-Thérèse Ltée
, [1985] 1 S.C.R. 831, at
    p. 838. Instead, [e]very word in a statute is presumed to make sense and to
    have a specific role to play in advancing the legislative purpose:
Sullivan
,
    at p. 211.

[41]

Finally, a court must situate its interpretation within the
    purpose of the legislation. Insofar as the language of the text permits, courts
    should adopt interpretations that are consistent with the legislative purpose
    and avoid interpretations that defeat or undermine that purpose. It is presumed
    that the legislature does not intend absurd consequences:
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 27.

[42]

The questions to be answered are whether ss. 672.5(9), (10) and
    (13) support the conclusions that: (a) the accused has the right to an
    in-person hearing unless they consent to a hearing by videoconference; and (b)
    the Board may proceed in the absence of the accused without their consent. Given
    the interrelated nature of these questions, I will consider them in a blended
    manner.

[43]

Before doing so, I will briefly summarize ss. 672.5(9), (10) and
    (13). Subsection 672.5(9) states that [s]ubject to subsection (10), the
    accused has the right to be present during the whole of the hearing. Subsection
    (10) goes on to list specific circumstances where the accused may be absent
    from the hearing. As noted above, only ss. 672.5(10)(a) is applicable and it
    reads: The court or the chairperson of the Review Board may (a) permit the
    accused to be absent during the whole or any part of the hearing on such
    conditions as the court or chairperson considers proper. The statute
    specifically addresses videoconferencing in s. 672.5(13), which provides:
    [i]f the accused so agrees, the court or the chairperson of the Review Board
    may permit the accused to appear by close circuit television or videoconference
    for any part of the hearing.

(a)

The Ordinary Meaning

[44]

When read alone, s. 672.5(9) arguably gives rise to some ambiguity
    as to whether the term present entitles an accused to be
physically
present. The right to be present could simply mean a right to attend the
    hearing. In contemporary times, someone could attend a hearing either
    physically or virtually. This would be consistent with the approach of courts
    to consider advances in technology that did not exist when Parliament enacted
    the provision:
John v. Ballingall
, 2017 ONCA  579, 136 O.R.
    (3d) 305, at para. 24, leave to appeal refuse [2017] S.C.C.A. No. 377. Such an
    approach ensures that statutory interpretation applies a dynamic approach to
    interpreting their enactments, sensitive to evolving social and material
    realities:
R. v. 974649 Ontario Inc
., 2001 SCC 81, [2001] 3 S.C.R.
    575, at para. 38.

[45]

However, any ambiguity about whether an accuseds right to be present
    entitles him or her to an in-person hearing is resolved when one considers s. 672.5(13).
    That section explicitly addresses circumstances where an NCRMD accuseds presence
    may be virtual, that is, through a videoconference. Parliament was careful to stipulate
    that the NCRMD accused must agree to appear by videoconference. This provision
    would have no meaning if s. 672.5(9) did not entitle the NCRMD accused to be physically
    present at a hearing. As noted above, the presumption of tautology states that
    [e]very part of a provision or set of provisions should be given meaning if
    possible, and courts should avoid, as much as possible, adopting
    interpretations that would render any portion of a statute meaningless or
    pointless or redundant:
R. v. Hutchinson
, 2014 SCC 19, [2014] 1 SCR
    346, at para. 16;
Sullivan
, at p. 211.

[46]

A plain reading of s. 672.5(10)(a) does not assist this court in
    interpreting whether the accused person has a right to be physically present. The
    Boards ability in certain circumstances to proceed in the absence of the
    accused does not speak to whether the accused is entitled to an in-person
    hearing.

[47]

However, a plain reading of s. 672.5(10)(a) does shed light on
    whether the Board may proceed in the absence of the accused without their
    consent. I am not convinced that the Board may do so. The word permit in s.
    672.5(10)(a) implies that the Board may grant the accused permission to be
    absent. Stated otherwise, it is premised on an accused waiving her right to an
    in-person hearing.

[48]

The word permit also has a specific connotation in the
Criminal
    Code
context. Monahan J. pointed to s. 650(2)(b)  a virtually identical
    provision  which courts have interpreted as only applying where an accused has
    waived their right to be present at trial:
R. v. Drabinsky,
[2008]

235 C.C.C. (3d) 350 (Ont. S.C.), at paras. 7-11. Mohanan J. also compared
    the word permit with the language of s. 715.23(1), which provides: "except
    as otherwise provided in this act, the court may order an accused to appear by
    audio conference or videoconference, if the court is of the opinion that it
    would be appropriate having regard to all the circumstances. Under s.
    672.5(13), which carves out an exception to s. 715.23(1), the Board may only
    permit (as opposed to order) the accused to appear by videoconference. It
    is presumed that the legislature uses words consistently and intentionally. I
    agree with Monahan J.s analysis on this point.

[49]

On a plain reading of ss. 672.5(9), (10) and (13), the right to
    be present implies a physical presence unless the accused consents to a hearing
    by videoconference. Additionally, the Board cannot proceed in the absence of
    the accused unless she has waived her right to be present.

(b)

The Act as a Whole

[50]

The next step involves a consideration of the Act

as a
    whole. The Crown asks us to interpret ss. 672.5(9), (10) and (13) in light of
    ss. 672.81(1), 672.5(2), and 672.53. Subsection 672.81(1) requires the Board to
    hold annual hearings to review dispositions made with respect to an NCR
    accused.
[10]
Subsection 672.5(2) provides that a review hearing may be conducted as
    informally as is appropriate in the circumstances.
[11]
Finally, s. 672.53 provides that any procedural irregularity in relation to a
    disposition hearing will not affect the validity of the hearing itself unless
    the irregularity causes substantial prejudice to the NCR accused.

[12]
I will
    deal with each of these provisions in turn.

[51]

There is no question that the Board must conduct review hearings
    on an annual basis and that this responsibility is a core aspect of its
    jurisdiction over NCR accused persons. Annual review hearings are of paramount
    importance as they allow the Board to ensure that the disposition is
    appropriately calibrated in a manner that balances the liberty interests of the
    accused with the protection of the public.

[52]

However, those hearings must be fair. An annual review hearing
    that proceeds by videoconference, over the objections of the accused, and
    without representation for the accused, cannot be considered fair. In the
    absence of consent of the NCR accused, only Parliament may require accused persons
    to forego the protections currently provided by the
Criminal Code.

[53]

In the present context, the need for fairness is amplified given
    the vulnerability of those under the jurisdiction of the Board. For some NCR
    accused, the forced use of videoconferencing could contribute to anxiety or
    paranoia relating to the use of technology: Community Legal Assistance Society
    (CLAS),
Operating in Darkness: BCs Mental Health Act Detention System,
(Vancouver:
    CLAS, 2017), at p. 135. Here it is important to keep in mind that the use of
    technology in criminal proceedings should be used to enhance access to justice,
    not inhibit it. The court and the Board must remain vigilant about the risk
    that COVID-19 protocols could erode the fairness of the decision-making
    process.

[54]

Presently, there are other ways to accommodate the needs for NCR
    accused people who do not consent to attending their annual hearing virtually. Part XX.1
    contemplates circumstances where this review period can be extended beyond a
    year. Specifically, ss. 672.81(1.1) permits the Board to extend the time for
    holding a hearing by a maximum of twenty-four months in certain circumstances.
[13]
As I return to below, if a public safety issue arises, the accused remains
    under the hospitals supervision. An accused can still be hospitalized without
    their consent pursuant to the
Mental Health Act,
R.S.O. 1990, c. M.7
.

[55]

The Crown also argues that the Boards decision to proceed by video
    was an extension of its authority under s. 672.5(2) to conduct the hearing
    informally where circumstances permit. I am not convinced that this is what
    Parliament had in mind when drafting this provision. In the limited
    jurisprudence surrounding s. 672.5(2), this provision has been used to
    make reasonable accommodations when it comes to information gathering or
    requests on consent of all parties. For example, the Board has invoked s.
    672.5(2) to make informal information requests from the hospital on an urgent
    basis:
R. v. Conception,
2014 SCC 60, [2014] 3 SCR 82, at para. 122.
    It has also been used to permit an NCR accuseds parents to attend an in-person
    hearing by video link with the consent of all parties:
Santia (Re),
[2014]
    O.R.B.D. No. 1051, at para. 9. Permission to operate informally is meant to
    assist the Board in executing its role as an inquisitorial tribunal; it is not
    meant to supersede an accused persons codified rights.

[56]

Finally, I am not of the view that proceeding by video is simply
    a procedural irregularity. The Crown asks this court to find that remote
    hearings do not impact the exercise of the procedural or substantive rights of
    the accused as they allow for meaningful participation. This case does not
    provide the necessary evidentiary record for this court to weigh-in on the
    extent to which a video forum impacts an accuseds substantive and procedural
    rights. However, as alluded to above, I am not prepared to treat the difference
    between an in-person hearing and a videoconference hearing as insignificant. The
    court must be cautious in endorsing such a broad proposition about the rights
    of vulnerable people in a time of crisis. Suffice to say, I am persuaded that the
Criminal Code
treats deviations from in-person hearings as more than
    mere procedural irregularities.

[57]

Turning to the Act

more broadly, it is important to note
    that the Boards jurisdiction is defined and limited by the
Criminal Code
.

The default rule in s. 715.21 of the
Criminal Code
provides that
    a person who appears at, participates in, or presides at a proceeding shall do
    so personally. When read in the context of other provisions in the
Code,
including
    ss. 502.1(1) or 487.01(7), personally in s. 715.21 means that criminal
    proceedings must proceed in the physical presence of the accused.

[58]

In 2019, Parliament enacted the default rule in s. 715.21 as part
    of a series of amendments to the
Criminal Code
that sought to
    modernize criminal procedure and expand the circumstances in which the accused
    and other participants in a criminal proceeding may appear virtually:
An
    Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts
    and to make consequential amendments to other Acts,
(Bill C-75), S.C.
    2019, c. 25, ss. 1(2), 188, 216, 225(2), 290 and 292.

[59]

In the new Part XXII.01, entitled Remote Attendance by Certain
    Persons, Parliament provided a judge or justice the authority to preside over proceedings
    via remote means, and in certain circumstances, to require the accused to
    appear by videoconference. Parliament had the opportunity to expand remote
    appearances to Part XX.1 of the
Criminal Code
to grant the Board
    statutory authority to order an NCR accused to appear by video. Parliament did not
    do so. This may well have been a legislative oversight. However, in the absence
    of an amendment, neither the Board nor this court has the authority to expand
    the Boards jurisdiction beyond the confines of Part XX.1.

(c)

The Purpose of ss. 672.5(9), (10) and (13)

[60]

Turning now to the purpose of the legislation
,
the dual objectives
    of Part XX.1 of the
Criminal Code
are the protection of the
    public and the fair treatment of the NCR accused:
Mazzei v. British
    Columbia (Director of Adult Forensic Psychiatric Services),
[2006] 1
    S.C.R. 326, at paras. 26-29. In furtherance of these twin goals, the Board has
    wide latitude to make orders and conditions binding on the parties before it.

[61]

As noted above, annual disposition hearings are central to this
    legislative scheme. They permit the Board to continuously ensure that the
    appropriate balance is struck between the protection of the public and the
    degree of restrictions on the liberty of the NCR accused.

[62]

It is up to Parliament to define the outer limits of the Boards
    jurisdiction when it comes to the balance between the accuseds procedural
    rights and the need for expediency. The statute is clear: there was no
    jurisdiction here.

[63]

There are practical implications for this interpretation, but they
    do not rise to the level of absurdity. As Monahan J. observed at para. 42, the
    Board is entitled to delay its in-person hearings until it is appropriate to convene
    in person or it can do so in a safe manner. However, assuming an in-person
    hearing was truly impracticable, the proper way forward would have been to
    grant adjournments when an accused does not consent to a video hearing. As
    noted above, s. 672.81(1.1) of the
Criminal Code
accounts for
    irregularities in the timeline of annual dispositions. While this is by no
    means a long-term solution, it is up to Parliament to carve out an exception to
    the default rule entitling people under the Boards jurisdiction to in-person
    hearings.

[64]

If concerns about the protection of the public arise in the
    interim, it remains open for the hospital to step in. Patients can be brought
    in under the
Mental Health Act
in the event of rapid decompensation. Pursuant
    to ss. 672.81(2) and (2.1), the Board is required to hold a review hearing as
    soon as practicable where the hospital seeks an early review hearing, or when
    the hospital has significantly increased restrictions on the accuseds liberty
    for a period exceeding seven days. The hospital may request an early review
    hearing when there is reason to believe that the current disposition does not
    adequately protect public safety:
Strachan (Re),
2019 ONCA 481,
    at paras. 4-9.

[65]

It is certainly foreseeable that an NCR accused might not consent
    to a video hearing in these circumstances, and that a delay could lead to an
    impractical and potentially dangerous result. But it is the role of the
    legislature, and not the Board, nor this court, to address this potential
    problem.

(d)

Conclusion on the Interpretation of Part XX.1

[66]

In summary, the task of this court was to interpret the relevant
    provisions of Part XX.1 of the
Criminal Code
and determine whether the
    Board acted without statutory authority. I am of the view that the Board failed
    to remain within the proper bounds of its jurisdiction, as conferred by
    statute. I do not see any error in Monahan J.s approach that would
    warrant this courts intervention.

D.

Ms. Woods Appeal of her Disposition Order

[67]

The operation of r. 43.03(5) is automatic. Once counsel for Ms.
    Woods filed and served a notice of application to quash in the Superior Court, r.
    43.03(5) suspended the proceedings before the Board. The Board erred in
    proceeding notwithstanding r. 43.03(5), without first seeking the approval of a
    judge, as is required by r. 43.03(6). Again, the Board does not have the
    authority to unilaterally override clear directions from the
Criminal
    Proceedings Rules for the Superior Court of Justice
.

[68]

The Board's decision to proceed without the NCR accused or her
    counsel raises procedural fairness concerns that might have afforded an
    alternative basis for quashing the decision, but it is unnecessary to decide
    this point given that the Board had no authority to proceed with the hearing in
    any event.

E.

CONCLUSION AND DISPOSITION

[69]

I would dismiss the appeal of the
certiorari
order and
    allow the appeal of the Boards disposition. Further, I would return this
    matter to the Board for a new hearing before a differently constituted panel,
    to be heard as soon as practicable.

Released: March 29, 2021 M.T.

M. Tulloch J.A.

I agree. Grant
    Huscroft J.A.

I agree. Thorburn
    J.A.

[1]
Rules 43.03(5) and (6) provide: (5) Subject to subrule (6), service of a notice
    of application to quash under subrule (2) upon a provincial court judge,
    justice or justices, coroner, or as the case may be, suspends the proceedings
    which are the subject of the application. (6) A judge may, upon service of a
    notice of application therefore in such manner, if at all, as the judge may
    direct, order that the proceedings which are the subject of the application to
    quash shall continue upon such terms as appear just.

[2]
Subsection 672.5(13) provides: If the accused so agrees, the court or the
    chairperson of the Review Board may permit the accused to appear by
    closed-circuit television or videoconference for any part of the hearing.

[3]
Subsection
672.81
(1)
provides: A Review Board shall hold a
    hearing not later than twelve months after making a disposition and every
    twelve months thereafter for as long as the disposition remains in force, to
    review any disposition that it has made in respect of an accused, other than an
    absolute discharge under paragraph 672.54(a).

[4]
Subsection 672.5(10)(a) provides: (10) The court or the chairperson of the
    Review Board may (a) permit the accused to be absent during the whole or any
    part of the hearing on such conditions as the court or chairperson considers
    proper

[5]
One of the members of the panel suffered a sudden illness that prevented him
    from sitting on the Board. The Board lost quorum and was reconstituted as a new
    panel.

[6]
The Law Society later informed counsel that it would not be proper for her to
    participate without instructions.

[7]

Subsection 672.5(9) provides:
(9)
Subject to subsection (10), the accused
    has the right to be present during the whole of the hearing.

[8]
Subsection 672.5(10)(a) provides:
(10) The court or the
    chairperson of the Review Board may (a) permit the accused to be absent during
    the whole or any part of the hearing on such conditions as the court or
    chairperson considers proper

[9]

Again, s.
672.5 (13) provides: If the accused so
    agrees, the court or the chairperson of the Review Board may permit the accused
    to appear by close circuit television or videoconference for any part of the
    hearing.

[10]
Subsection 672.81 (1) provides: A Review Board shall hold a hearing not later
    than twelve months after making a disposition and every twelve months thereafter
    for as long as the disposition remains in force, to review any disposition that
    it has made in respect of an accused, other than an absolute discharge under
    paragraph 672.54(a).

[11]
Subsection 672.5(2) provides: The hearing may be conducted in as informal
    a manner as is appropriate in the circumstances.

[12]
Section 672.53 provides: Any procedural irregularity in relation to a
    disposition hearing does not affect the validity of the hearing unless it
    causes the accused substantial prejudice.

[13]
Subsection 672.81(1.1) provides: Despite subsection (1), the Review Board may
    extend the time for holding a hearing to a maximum of twenty-four months after
    the making or reviewing of a disposition if the accused is represented by
    counsel and the accused and the Attorney General consent to the extension.


COURT OF APPEAL FOR ONTARIO

CITATION: Boudreau v. Jakobsen, 2021 ONCA
    556

DATE: 20210803

DOCKET: C68278

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Bruce Boudreau

Applicant

(Respondent)

and

Randi Jakobsen

Respondent

(Appellant)

Michael J. Stangarone and Stephen P.
    Kirby, for the appellant

Jenna Beaton and Jessica Grys, for the respondent

Heard: in writing

On appeal
    from the order of Justice Sharon Shore of the Superior Court of Justice dated February
    5, 2020.

COSTS ENDORSEMENT

[1]

The parties have filed written cost
    submissions. The respondent, Bruce Boudreau, was entirely successful in
    opposing the appeal of Randi Jakobsen. Accordingly, Ms. Jakobsen shall pay Mr.
    Boudreau his costs of the appeal fixed in the amount of $14,000, inclusive of
    disbursements and applicable taxes.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett 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. S.S.S., 2021 ONCA 552

DATE: 20210803

DOCKET: C67462

Feldman, Lauwers and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.S.S.

Appellant

Anil K. Kapoor and Victoria M. Cichalewska,
    for the appellant

Vallery Bayly, for the respondent

Heard: February 17, 2021 by video conference

On appeal from the convictions entered
    by Justice Sandra Caponecchia of the Ontario Court of Justice on May 13, 2019,
    and from the sentence imposed on October 8, 2019.

Feldman J.A.:

A.

INTRODUCTION

[1]

The appellant appeals his convictions for sexual
    assault and sexual interference, and seeks leave to appeal his sentence of six
    months imprisonment plus two years probation, along with various ancillary
    orders, including one under s. 161 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[2]

The complainant was a young girl, eight or nine
    at the time of the alleged offences and eleven at trial. The appellant was a 20-year-old
    university student at the time of the alleged offence. The families of the complainant
    and the appellant were close. Sometime between February 1 and March 31, 2017,
    the complainant had a sleepover at her friend P.s home. P. is the appellants
    younger sister. The complainant said that sometime during the sleepover, when P.
    was in the shower and she was in a chair in the kitchen, the appellant came in,
    kissed her, and touched her breasts and vagina over her clothes. She said she
    screamed as the appellants parents returned home from a shopping trip.

[3]

The appellant testified, denying the
    complainants claim. He stated that he remembered the weekend the complainant
    slept over and that he was never alone with her.

[4]

The appellant raises a number of grounds for the
    conviction appeal, most of which allege errors by the trial judge in her
    assessment of the credibility and reliability of the complainant and the
    appellant. In my view, the trial judge erred in fact and law by finding that
    the complainant and her mother had a motive not to fabricate the allegations,
    and by using that finding to enhance the credibility of the complainant. I
    would accordingly order a new trial.

B.

Background

(1)

Evidence of the complainant

[5]

The complainants evidence was given in two
    forms. She gave a videotaped statement to the police, several months after the
    incident, once her mother made the decision to report it. In addition, she
    testified at the trial. Her mother, her father, and her upstairs neighbour,
    whom she referred to as her aunt, also testified, essentially about how they learned
    of the incident, how the incident was reported to the police, and what subsequent
    interactions the complainant and her mother had with the appellants family.

[6]

The complainant said that the incident took
    place while she was staying at the appellants house. The appellants father
    had picked her up on a Friday and taken her to their house for a sleepover with
    P. According to the complainant, the people at the house were P, the appellant,
    the appellants parents, and H., who she referred to as P.s brother. The
    complainant testified in cross-examination that she did not see the appellant
    before she went to bed that night. She ultimately could not pinpoint the timing
    of the incident, but she said it occurred while she was in the kitchen on a
    wheelie-chair. At the time, P. was taking a bath, H. was at work, although
    she was not sure if he was at home, and the appellants parents were out at a
    shop.

[7]

The complainant testified that the appellant
    came downstairs. She said the appellant kissed her on the lips, tickled her
    on her breasts, and patted her private part over her underwear after he moved
    her pants partway down. She said she screamed as the appellants parents returned
    home from their shopping trip. She told them what happened, they asked her a
    bunch of questions, and then they sent her upstairs and asked the appellant
    questions.

[8]

In cross-examination, defence counsel asked the
    complainant about what occurred the next morning. She agreed that after she
    woke up, she played in the kitchen with P.s mother and ate oranges. This
    accorded with the testimony of the appellant. The complainant also agreed that
    at some point, her mother arrived, and that the appellant came downstairs, said
    hello to her mother, and then went back upstairs. She similarly saw H. come
    down for lunch and go back to his room. She acknowledged that she had been guessing
    when she testified to H.s whereabouts during the incident.

[9]

The complainant described how she felt close to
    P. and how P. had helped her when she was bullied. When the complainants
    mother picked her up from the sleepover, she told her she had had a great time
    and wanted to visit P. again.

[10]

In both the police statement and
    cross-examination, the complainant stated that she liked to scare her mother by
    telling her things that were not true. However, in cross-examination, she
    denied that she had made up the allegations against the appellant. The
    complainant also admitted that she was not sure whether the appellants parents
    went to the store the day she arrived or the next day. She acknowledged that
    she did not see the appellant before she went to bed, which was on the day she
    arrived.

(2)

The evidence of the complainants mother

[11]

The evidence of the complainants mother focused
    on the relationship she and her daughter had with the appellants family before
    and after the incident. She explained that she had known the appellants father
    since the age of two, and that she was close to both him and the appellants
    mother. She permitted her daughter to sleep over at their house because the
    complainant enjoyed spending time with the appellants sister, P. She recounted
    that the sleepover took place sometime in February or March of 2017. Her daughter
    told her about the incident two to four days later, after which point she did
    not let the complainant have another sleepover at P.s house, and sent the
    complainant to stay with her aunt whenever the appellants family visited.

[12]

In cross-examination, the complainants mother was
    asked why she had not cut ties with the appellants family after her daughters
    disclosure to her. She responded that she had tried to reduce contact and that
    she trusted the appellants parents who had been good to her in the past,
    having taken her in when she immigrated to Canada and was pregnant with the
    complainant. She repeatedly denied the suggestion that she continued to
    associate with the appellants family because she did not believe her daughter.

(3)

The evidence of the appellant

[13]

The appellant testified. He recalled the weekend
    that he came home from his university for reading week and the complainant was
    sleeping over at his house. He stated that he got home late on the Friday
    night, after the complainant had gone to bed, and that he did not see her until
    the next morning. He denied that he was ever alone with the complainant. He was
    only in the kitchen with the complainant when other adults were there as well. He
    also denied all of her allegations that he touched her and kissed her.

[14]

The appellant stated that after the sleepover,
    he saw the complainant and her family members on more than one occasion. He did
    not believe that anyone acted differently towards him.

[15]

None of the appellants family members
    testified.

(4)

The trial judges findings

[16]

The trial judge believed the complainant. She
    rejected the appellants evidence because she accepted the complainants
    evidence beyond a reasonable doubt, applying
R. v. J.J.R.D
. (2006),
    215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
    69, and
R. v. R.D.
, 2016 ONCA 574, 342 C.C.C. (3d) 236. In addition,
    the trial judge did not find the appellants evidence to be compelling in form
    or content, for two reasons: (1) the appellants demeanor had changed under
    cross-examination; and (2) she found it incredible that he remembered exactly
    which weekend his sisters friend slept over, when he came home from university
    regularly on the weekends at different hours, and since two years had passed
    between the incident and his trial. The trial judge acknowledged, however, that
    aside from those frailties, the appellants blanket denial did not have any
    flaws. Nevertheless, for the trial judge, it did not raise a reasonable doubt.

C.

Issues

[17]

The appellant raises five issues on the
    conviction appeal. Three focus on alleged errors in the credibility assessments,
    including the trial judges finding that the complainant had no motive to
    fabricate, one submits that the trial judge misapplied the standard of proof,
    and one challenges the trial judges ruling on the admission of third-party
    records.

[18]

As I would order a new trial based on the error
    in the trial judges finding of no motive to fabricate, it is only necessary to
    address that issue and the third-party records issue.

D.

ANALYSIS

(1)

Motive to Fabricate

(a)

Overview

[19]

The trial judge found that she was satisfied
    beyond a reasonable doubt of the credibility and reliability of the complainant.
    One of the factors the trial judge considered in the portion of her analysis
    where she reached this conclusion was the complainants lack of motive to
    fabricate. She found that not only was there no evidence of motive to fabricate
    or animus, but that it was contrary to the interests of the complainant and her
    mother to come forward, and the fact that they did demonstrated how the
    complainant had no motive to fabricate. The trial judge used that finding as a
    make-weight to enhance the complainants credibility.

[20]

The trial judge addressed the issue of motive to
    fabricate in the following two paragraphs of her reasons:

[164] I have taken into consideration that
    there is no evidence of a motive to fabricate or animus in this case. To the
    contrary, by coming forward the complainant stood to jeopardize her friendship
    with the defendants sister. The complainants mother risked the close
    relationship and support of the defendants parents, both of whom she
    considered family.

[165] The existence or absence of a motive to
    fabricate is a relevant factor to be considered. I acknowledge that when
    dealing with the issue of a complainants motive to fabricate, it is important
    to recognize that the absence of any evidence of motive to fabricate is not the
    same as absence of motive to fabricate. It is dangerous and impermissible for
    me to move from an apparent lack of motive to the conclusion that the
    complainant must be telling the truth. People may accuse others of committing a
    crime for reasons that may never be known, or for no reason at all. The burden
    of production and persuasion is upon the prosecution and an accused need not
    prove a motive to fabricate on the part of a principal Crown witness.
    [Footnotes omitted.]

[21]

There are three errors in the trial judges
    approach. The first is a factual error, while the other two are legal errors.
    The errors are as follows: (1) there was no evidence from the complainant that
    she believed coming forward would jeopardize her friendship with P.; (2) the
    fact that the complainants mother did not want to undermine her relationship
    with the appellants parents in no way supports the credibility of the
    complainant  it is irrelevant to her credibility; and (3) even if the trial
    judge only found no evidence of motive to fabricate, treating the lack of
    evidence of motive to fabricate as a factor in assessing the credibility of the
    complainant in this case amounts to an error of law, because it had the effect
    of putting an onus on the appellant to disprove that the complainant had no motive
    to fabricate.

(b)

How the issue was raised at trial

[22]

The issue of motive to fabricate was raised in
    closing argument by defence counsel at trial (not appeal counsel). Defence counsel
    first submitted that there was evidence of motive to fabricate because the
    complainant had mentioned in her police statement and cross-examination that
    she would tell her mother stories that were not true. After a discussion between
    counsel and the trial judge regarding that evidence, the trial judge asked
    defence counsel, So, what are you saying is the motive to fabricate here? Defence
    counsel responded that the appellant did not have to prove motive to fabricate,
    but then clarified his initial submission by saying: Where I meant  I guess
    the  the better word of saying, theres evidence here from the complainant
    that shes made up this story. I  I guess it[s] better to say it that way as
    opposed to motive. The clarification served to withdraw his initial submission
    on the motive to fabricate.

[23]

Despite that clarification, Crown counsel at
    trial (not appeal counsel) made her own submission that there was no motive to
    fabricate and no animus, and that to the contrary, on the totality of the
    evidence, there was a motive to tell the truth, i.e., not to fabricate. There
    was no plan of revenge, the complainants mother continued to see the
    appellants family, she initially did not report the incident to police, she
    still respected the appellants parents, and she did not want to destroy her close
    relationship with them.

[24]

The effect of these submissions was that while the
    defence was not taking the position that the complainant had a motive to
    fabricate, the Crown asserted that the complainant was credible, in part,
    because she had no motive to fabricate. The trial judge accepted the Crowns
    submission.

(c)

Errors in the trial judges reasoning

[25]

Paragraphs 164 and 165, quoted above, are the
    trial judges response to counsels submissions. I interpret paragraph 164 as a
    finding by the trial judge that there was evidence of no motive to fabricate,
    i.e., there was motive on the part of the complainant and her mother not to
    come forward. The trial judge took this finding into consideration in concluding
    that the complainant must be telling the truth, and determining that she
    believed the complainant beyond a reasonable doubt.

[26]

However, the trial judge erred by so doing.
    First, there was no evidence to support the trial judges finding regarding the
    complainant herself. The complainant was not asked any questions about whether
    she was concerned that her disclosure would jeopardize her relationship with
    her friend, P. There was no basis for the trial judge to infer such a concern
    from her evidence. The inference amounted to transferring the concerns of the
    complainants mother onto the complainant, a young child.

[27]

Second, the trial judge relied on the mothers desire
    to maintain a good relationship with the appellants family to bolster the
    credibility of the complainants account. That was an error of law. The
    mothers motive cannot and does not speak to the credibility of the complainants
    story.

[28]

In the second paragraph, i.e., 165, the trial
    judge discussed the law on motive to fabricate. She began by stating that the
    existence or absence of a motive to fabricate is a relevant factor to be
    considered. That is an accurate statement where there is a proved presence or
    absence of motive to fabricate:
R. v. Bartholomew
,
2019 ONCA 377, 375 C.C.C. (3d) 534,
at para. 21.

[29]

The trial judge then recognized the distinction
    between no motive to fabricate and no evidence of motive to fabricate, and that
    it is impermissible to move from an apparent lack of motive to fabricate to the
    conclusion that the complainant is telling the truth. She also confirmed that an
    accused need not prove that a Crown witness had a motive to fabricate. While
    these statements of the law are true, it is unclear how they were applied by
    the trial judge.

[30]

First, the trial judge did not find a lack of
    evidence of motive to fabricate. Rather, she found that there was no motive to
    fabricate, which she used as a make-weight for the complainants credibility. Finding
    no motive to fabricate amounted to a factual error that was not available on
    the evidence. As explained above, the complainant was never asked about motive
    to fabricate or any concern that coming forward could jeopardize her friendship
    with P. In cross-examination she said she did not disclose her allegation to P.,
    but she was not asked about her reason(s) for that decision. The question
    appeared to be part of a series of questions intended to suggest that the incident
    did not actually occur, as opposed to suggesting that the incident did occur, but
    that the complainant did not want to tell P. about it because she was afraid of
    ruining their friendship. The trial judge also based her finding that the
    complainant had no motive to fabricate on her perception that the complainants
    mother believed that she could jeopardize her relationship with the appellants
    family if the complainant came forward. This was a significant error because
    the mothers motive or lack thereof cannot be attributed to the daughter.

[31]

Second, there was no issue of onus because the
    appellant did not rely on motive to fabricate. Although defence counsel
    initially labelled his argument about the complainants tendency to tell her
    mother untrue stories as motive to fabricate, he withdrew that label. He was
    not arguing motive to fabricate. His argument was simply that the complainant
    had a history of telling untruths rather than a motive to tell untruths.
    Therefore, the question of whether or not the accused had proven motive to
    fabricate was not an issue before the trial judge.

(d)

The impact of
Ignacio

[32]

At the oral hearing of the appeal, counsel were
    asked to provide written submissions on the effect of this courts recent decision
    in
R. v. Ignacio
, 2021 ONCA 69, 70 C.R. (7th) 134, leave to appeal
    refused, [2021] S.C.C.A. No. 127, on the motive to fabricate issue here. In
Ignacio
,
    the defence took the position at trial that the complainant had a motive to fabricate
    because she feared that she had become pregnant from her sexual encounter with
    the accused and needed a way to explain the pregnancy to her parents in order to
    absolve herself of any responsibility. The trial judge rejected this submission,
    found that the complainant did not fear becoming pregnant and had a good
    relationship with the appellant, and concluded that she had no motive to
    fabricate.

[33]

On appeal, the accused argued that the trial
    judge had erred in finding that the complainant had no motive to fabricate, and
    that this erroneous finding influenced his decision to accept the evidence of
    the complainant and reject the evidence of the accused.

[34]

The court found that in responding to the
    defence submission that the complainant had a motive to fabricate, the trial
    judge had not made a finding of no motive to fabricate, but had simply
    determined that there was no evidence of a motive to fabricate. The court then
    found, as a matter of law, that the trial judge was entitled to consider the
    absence of evidence of motive to fabricate as a factor in assessing the
    credibility of the complainant.

[35]

Ignacio
is
    distinguishable from this case on the factual finding. Because
Ignacio
deals with the use that a court can make of a finding of no evidence of a
    motive to fabricate, rather than a finding of no motive to fabricate, its
    result is not applicable to this case.

[36]

However,
Ignacio
is also
    distinguishable because there, the issue of motive to fabricate was raised by
    the defence and therefore had to be addressed by the trial judge, whereas in
    this case, the issue was not raised by the defence. Consequently, in
Ignacio
,
    the court did not have to consider the risk of the onus being reversed in
    situations where the issue is not raised by the defence.

[37]

Here, the issue was raised only by the Crown, who
    argued no motive to fabricate rather than no evidence of motive to fabricate. The
    Crown did not submit that if the court failed to find no motive to fabricate,
    but only found no evidence of a motive to fabricate, that it could and should use
    the absence of evidence of motive to fabricate to add weight to the
    complainants testimony.

[38]

Not only is there no burden on an accused to
    prove a motive to fabricate, there is equally no burden on an accused to disprove
    that the complainant had no motive to fabricate.
[1]
If the accused does not raise the issue, it is not open to the trial judge to find
    that there was no evidence of motive to fabricate and to use that finding, not
    disproved by the accused, as a make-weight in support of the complainants credibility.

[39]

The trial judges error in finding no motive to
    fabricate and using that to bolster the credibility of the complainant was a
    significant one in the context of this case. Her acceptance of the
    complainants credibility was the main reason she rejected the appellants evidence
    and found that it did not raise a reasonable doubt. As any aspect of the
    credibility analysis could have been critical to the finding of proof beyond a
    reasonable doubt, the trial judges error requires a new trial.

(2)

Third-Party Records

[40]

After the appellant was charged with the
    offences before the court, the Childrens Aid Society (CAS) sent a letter informing
    him that an investigation had been conducted into whether the complainant was
    in need of protection, and that the file had been subsequently closed. At trial,
    the appellant sought production of the CAS record as it related to the
    appellant and the complainant.

[41]

The trial judge fully considered the defence
    request in the legal context prescribed by the
Criminal Code
and explained
    by the case law, beginning with
R. v. Mills
, [1999] 3 S.C.R. 668.
Mills
sets out the two-stage process governing the release of s. 278.1 records. At
    the first stage, the court decides whether the accused has established that the
    record is likely relevant to an issue at trial or to the competence of a
    witness to testify. If so, then the record is produced to the trial judge, who
    looks at the record in the absence of the parties, and if necessary, holds a
    hearing to determine its likely relevance and whether its production is
    necessary in the interests of justice.

[42]

Here, the trial judge concluded that the appellant
    had not satisfied the first stage, i.e., that the record was likely relevant.
    She therefore did not need to proceed with the next steps of the process.

[43]

At trial, the appellant relied on the reasons
    enumerated in ss. 278.3(4)(a), (c), (d), (e) and (k) of the
Criminal

Code
to establish likely relevance, based on the following three statements in the
    CAS letter:

1.
CAS investigated a report that the defendant engaged in sexual
    activity with a child while in a care giving role.

2.
The concern that the defendant was engaged in abusive sexual
    activity with a child while in a care giving role has not been verified.

3.
The society was unable to verify the concerns as it was found that
    you were not in a caregiver role of the child at the time of the alleged incident.

[44]

Based on these statements, the appellant argued
    that the record was necessary to make full answer and defence because it
    established that (1) witnesses were interviewed by the CAS, and their
    statements could be used to impeach their credibility; (2) the complainants allegation
    was not verified by the CAS; and (3) material representations were made to the
    CAS by the complainant or a witness.

[45]

The trial judge found that the defence had not
    met its onus for three reasons. First, the letter did not say that the CAS had
    found no merit in the complainants allegation, but only that it could not
    verify that the appellant was in a caregiving role at the time of the incident.
    Second, there was no basis to conclude that the CAS had interviewed the
    complainant or other Crown witnesses. Third, even if the CAS record contained statements
    from the complainant or other Crown witnesses, the defence had the ability to
    obtain the same evidence from other sources. In particular, the appellant had
    access to members of his family who were at home with him during the alleged
    incident, and to the statements provided by the complainant and the other Crown
    witnesses.

[46]

On appeal, the appellant argues that the trial
    judge erred in the likely relevance analysis by treating the CAS record as having
    the same degree of privacy protection as counselling records.

[47]

In
Mills
, at paras. 136-137, the Supreme
    Court held that the nature of the records provides trial judges with the
    informational foundation to assess the privacy interest at issue. Counselling
    records have been recognized as extremely private because of the trust involved
    in the counselling relationship and the subjective nature of the disclosures.

[48]

In contrast, the record at issue here was the
    result of a targeted CAS investigation. If the complainant was interviewed, it
    was with respect to the very incident that is the subject of the charges
    against the appellant. The trial judge considered this same argument by the
    defence, regarding the lower level of privacy in CAS records than in counselling
    records, in the context of whether production was necessary in the interests of
    justice. The trial judge appeared to reject the submission, observing that CAS
    records regarding an alleged sexual assault can contain very private
    information about a complainant and their family. Nevertheless, the trial judge
    concluded that had she found likely relevance, then in the interests of
    justice, she would have been inclined to order the production of the CAS record
    for inspection by the court given the narrow scope of the request for records
    only involving the defendant.

[49]

I would accept the submission of the appellant.
    Given that any statement by the complainant to the CAS, if she made one, would
    have related to the allegations in this case and would not have been of a
    therapeutic nature, the privacy interest in the record is not as high as in counselling
    records. If there was any such statement, it was reasonably possible that it
    would be logically probative of an issue at trial. In those circumstances, the
    trial judge stated that had she found likely relevance, she would have ordered
    production for review by the court in the interests of justice. In my view, that
    is the correct approach for the new trial.

E.

Conclusion

[50]

For the above reasons, I would allow the appeal,
    set aside the convictions, and order a new trial.

Released: August 3, 2021 K.F.

K. Feldman J.A.

I agree. P. Lauwers JJ.A.

I agree. Gary Trotter J.A.

[1]

In
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at
    para. 25,
Trotter J.A.
observed that the lack of evidence of a motive to
    fabricate should be used as a neutral factor for assessing the credibility of
    the complainant. Paciocco J.A. reiterated the same point in
R. v. S.H.
,
    2020 ONCA 34, at para. 11:

[11]

Moreover, it is inadmissible for a trial Crown,
    without proving affirmatively that a complainant did not have motive to
    mislead, to argue in substance that the absence of a known motive to mislead
    adds to the weight of her testimony:
R. v. Bartholomew
,
2019 ONCA 377
, 375 C.C.C. (3d) 534, at paras.
22-23
. Where this occurs, the trial judge must
    direct the jury that this reasoning is not permissible:
R. v. M.B
.
,
2011 ONCA 76
, 267 C.C.C. (3d) 72, at paras.
30-32
. Reasoning in this way undermines the
    presumption of innocence by reversing the burden of proof and fails to
    recognize that motives to mislead can be hidden:
R. v. L.L.
,
2009 ONCA 413
, 96 O.R. (3d) 312, at paras.
16
, 44.

The
    court clarified the reasoning for this principle of law in
R. v. A.S.,
2020 ONCA 229, at paras. 58-60:

[58] Where, as here,
    a suggested motive to mislead is disproved, the testimony is preserved from
    being impugned by such motive. When that suggested motive is disproved, it is
    as though the suggested motive is knocked off of the scales.

[59] However,
    affirmative weight cannot properly be added to the scales in favour of the
    testimony of a witness unless there is a proved absence of motive on the part
    of that witness: see, generally,
R. v. Bartholomew
, 2019 ONCA 377, 375
    C.C.C. (3d) 534, at paras. 22-23;
R. v. M.B.
, 2011 ONCA 76, 267 C.C.C.
    (3d) 72, at paras. 30-32;
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412,
    at paras. 16, 44. Disproving a single suggested motive to mislead  such as a
    desire to win custody and access  does not prove the absence of
any and all
motives to mislead.

[60] Accordingly, the
    trial judges rejection of the sole motive considered for the complainants
    testimony cannot add affirmative weight supporting the complainants claim that
    she was not consenting. It is not capable in law of being a makeweight
    affirmatively supporting her testimony. [Emphasis in original.]


COURT OF APPEAL FOR ONTARIO

CITATION: D.C. v. T.B., 2021 ONCA 562

DATE: 20210804

DOCKET: M52687

van
    Rensburg J.A. (Motions Judge)

BETWEEN

D.C.

Moving Party

and

T.B.

Responding Party

Michael J. Stangarone and Aria MacEachern,
    for the moving party

Christina Doris and Jessica Luscombe, for the
    responding party

Heard and released orally: August 3, 2021 by
    videoconference

ENDORSEMENT

[1]

The moving party seeks an extension of time to
    appeal the final order of Conlan J. with respect to parenting of the parties
    daughter, R., who is almost 12 years old. She also seeks to stay the final
    order pending appeal. The motion is opposed by the responding party, who is
    R.s father.

[2]

I will deal with each aspect of the motion in
    turn.

The Extension of Time to Appeal

[3]

The mother was three days late in serving her
    notice of appeal. She sought consent from the father to the late filing of the
    notice of appeal, which was refused. Courts can extend time under r. 3.02 of
    the
Rules of Civil Procedure
. In general, the following factors are
    relevant to a motion to extend time to appeal: (1) whether the appellant formed
    an intention to appeal within the relevant period (in this case 30 days after
    the final order); (2) the length of, and explanation for, the delay; (3)
    prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately,
    whether it is in the interests of justice to order the extension of time. In
    cases involving children, the justice of the case is reflected in the best interests
    of the children:
Denomme v. McArthur
, 2013 ONCA 694, at para. 10.

[4]

The mother states in her affidavit that she
    formed the intention to appeal within the requisite time. She explains that the
    delay resulted from a combination of the traumatic effect of the final order
    and the time that was required to retain appellate counsel. The motion was
    brought promptly.

[5]

The father opposes the motion for an extension
    of time, asserting that the mother waited until she received his costs
    submissions before deciding to appeal. He asserts that he is prejudiced, in
    part because the mother has failed to pay her share of the costs of the Family
    Bridges program. He asserts that the merits of the appeal are weak.

[6]

I am satisfied that an extension of time is in
    the interests of justice.

[7]

The mother had a right to appeal the final order
    of the trial judge and the right to seek leave to appeal the award of costs.
    The final order reverses custody of R. and prevents the mother from having any
    contact with R. for a period of time, and the mother is subject to an award of substantial
    indemnity costs. The mother was only three days late in serving her notice of
    appeal. Even if she decided to appeal only after she received the fathers
    costs submissions, she formed the intention to appeal within 30 days of the
    final order. The final order has been implemented to the extent that R. is
    residing with her father, and they are participating in the After Care program.
    R.s contact with her mother is suspended. Other than the mothers non-payment
    of her share of the Family Bridges program required under para. 20 of the final
    order (it is a financial provision that would be stayed on appeal), the mother
    has complied with the final order. The therapists have indicated that her
    involvement in the After Care program is suspended during her appeal.

[8]

I am not prepared to say that there is no
    potential merit to this appeal. In view of the very short delay, the strength
    of the proposed appeal is not a compelling factor in this case. The mother has
    a right to appeal the final order and a three-day delay should not prevent her
    from doing so.

Stay Pending Appeal

[9]

Custody and access orders remain in effect
    pending an appeal to this court unless the court has ordered otherwise. In
    determining whether to stay an order involving the parenting of a child, the
    courts must consider: (1) whether, on a preliminary assessment, the appeal
    raises a serious question (recognizing that this is a low threshold); whether
    the child will suffer irreparable harm if a stay is refused; and (3) the
    balance of convenience: namely whether there would be greater harm from the
    granting or refusal of a stay pending a decision on the merits of the appeal.
    The overriding consideration, again, is the best interests of the child. In
    other words, the court must be satisfied that it is in the childs best
    interests to grant a stay:
K.K. v. M.M
., 2021 ONCA 407, at para. 17
    and
Lefebvre v. Lefebvre
, 167 O.A.C. 85 (C.A.), at para. 6.

[10]

The standard for appellate review of a custody
    or parenting decision is exacting:
Bors v. Bors
, 2021 ONCA 513, at
    paras. 18-20. The function of this court is not to retry the case on appeal.
    Intervention is warranted only if there is a material error, a serious
    misapprehension of the evidence, or an error of law. The mother contends that
    there are a number of errors in the trial judges decision, and accordingly
    that the appeal raises a serious issue. Among other arguments, she asserts that
    the trial judge erred in the scope and application of the expert evidence of
    the joint participant expert, Dr. Fidler.

[11]

The mothers argument about irreparable harm
    essentially focuses on her temporary separation from the child and its effect
    on both her and the child.

[12]

The father argues that the mothers appeal lacks
    merit, but even if there were some arguable merit to the appeal, that a stay is
    not in the best interests of R., who is continuing to benefit from the current
    therapeutic program and the opportunity (which will continue throughout the
    summer) to rebuild a relationship with her father and his family. The father
    also points to the disruption and additional costs that would be incurred in
    stopping and restarting the therapeutic program, if a stay were granted and the
    mother were to lose her appeal.

[13]

In this case, as in
K.K. V. M.M
., staying
    [the final order] would not preserve the
status quo
, but would
    disassemble the structure the trial judge put in place and replace it with the
    very circumstances [he] found not to be in [the childs] best interests; it
    would run the risk of undoing the very benefits that the trial judge fashioned
    the Order to achieve: at para. 28.

[14]

I am not persuaded that a stay of the final
    order pending appeal is in the best interests of R. The reasons of the trial
    judge are comprehensive and reveal no
obvious
error. The grounds of
    appeal may be arguable, but they are weak. What the mother is seeking is a
    return to the
status quo
before the final order was made. She seeks to
    have R. return to live with her, ending the current living arrangements and the
    suspension of her contact with R. She seeks to stop the process which started
    on the day the final order was made. The letter from the therapists (prepared
    at the fathers request) notes that R. is adjusting to the transition and that the
    family is receiving appropriate support in the process. No doubt R. misses her
    mother. However, she is benefiting from the restoration of her relationship
    with her father. There is no question about the level of care she is receiving.
    Since there is no evidence of significant harm or risk of harm to R. as a
    result of the order, and evidence of benefit to R. in continuing to have the
    order in effect, to stay the order under appeal would be highly disruptive to
    R. under appeal and would not be in her best interests.

[15]

Finally, before ending these reasons, I note
    that the mother was complying with the final order by doing what was required
    to participate in the After Care program until the therapists indicated that
    they would not continue while an appeal is pending. Her counsel advises that she
    continues to be prepared to participate in therapy. Pursuant to para. 19 of the
    final order the parties are returning to the trial judge on September 15, 2021.
    The parties are agreeable to expediting the appeal. All of this is helpful and
    no doubt in R.s best interests.

[16]

For these reasons, the motion to extend time to
    appeal is granted, and the stay pending appeal is refused. The appeal shall be
    perfected on or before August 20, 2021 and the hearing of the appeal shall be
    expedited. On consent of the parties, an order is made to use initials in place
    of the names of the parties and the child in these reasons and the order of
    this court. As agreed between the parties, and to reflect the divided success,
    there will be no costs of this motion.

K. van Rensburg J.A.