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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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., 2021 ONCA 802

DATE: 20211108

DOCKET: M52911 (C69745)

Thorburn J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

C.S.

Appellant (Applicant)

Megan Savard, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: November 5, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

When the appellant was 21 years old, he was involved in a physical
    confrontation with a 13-year-old complainant (the first complainant) who
    called the police. He was apprehended and charged with assault. During the
    police investigation, police learned of the appellants alleged sexual
    relationship with the first complainant and the exchange of sexual material
    with a second, 12-year-old complainant (the second complainant).

[2]

The trial judge found the appellant guilty of having intercourse with
    the first complainant and punching her during an altercation. The trial judge
    also found that he sent a photo of his penis to the second complainant and had
    received a picture of her buttocks.

[3]

The appellant was convicted by judge alone of (1) sexual interference,
    (2) possession of child pornography, (3) making sexually explicit material
    available to a child, and (4) assault. He received a sentence of six years.

[4]

The appellant appeals both his conviction and sentence.

[5]

On this motion, he seeks bail pending appeal.

THE TEST TO BE MET TO OBTAIN BAIL PENDING APPEAL

[6]

To obtain bail pending appeal pursuant to s. 679(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, the appellant must establish that: (1) the
    appeal is not frivolous (s. 679(3)(a)); (2) he will surrender into custody in
    accordance with the terms of the order (s. 679(3)(b)); and (3) detention is not
    necessary in the public interest (s. 679(3)(c)). The appellant has the burden
    of establishing each of the three release considerations, on the balance of
    probabilities:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para.
    19.

ANALYSIS OF THE ISSUE

[7]

The Crown concedes that the appellant has met his onus to show he will
    surrender into custody as required with the imposition of the appropriate terms
    of bail, and that his detention is not necessary in the public interest.

[8]

The only question is whether the appeal exceeds the frivolous threshold.

[9]

In
Oland,
at para. 20, Moldaver J. acknowledged that the not
    frivolous test sets a very low bar. It requires only that an applicant show
    that the proposed grounds of appeal raise arguable issues, and that the appeal
    is not doomed to fail:
R. v. Manasseri,
2013 ONCA 647, 312 C.C.C. (3d)
    132, at para. 38;
R. v. Xanthoudakis,
2016 QCCA 1809, 343 C.C.C. (3d)
    291, at paras. 4-5.

[10]

An
    appeal is not frivolous if the proposed grounds raise arguable issues of a
    viable ground of appeal that would warrant appellate intervention if
    established:
Manasseri,
at para. 38.

[11]

In
    this case, the grounds of appeal are focused on the trial judges alleged
    failure to consider and/or appreciate the appellants significant intellectual
    disability in convicting the appellant and determining the appropriate
    sentence. In particular, the appellant claims that the trial judge erred by:

a)

engaging in impermissible speculation by concluding the appellant had an
    operating mind in the face of expert evidence to the contrary;

b)

finding that the appellants statements to police were voluntary without
    considering and/or appreciating the effect of the appellants significant
    intellectual disability;

c)

failing to take the appellants intellectual disability into account at
    all in assessing his credibility; and

d)

failing to consider his intellectual disability as a mitigating factor
    on sentence.

[12]

At
    trial, the appellant called a clinical and forensic psychologist to give
    evidence on the appellants cognition and IQ. The appellants expert evidence
    was the only expert evidence proffered to address the appellants intellectual
    functioning and its effect on his comprehension and social perception.

The case against the appellant

[13]

At
    the outset of trial when asked how he wished to plead to the charges, the
    appellant replied yes. Counsel asked for an adjournment to speak with her
    client and after speaking with his counsel, the appellant advised the court
    that he was pleading not guilty to each of the charges.

[14]

At
    trial, the first complainant testified that she and the appellant had a sexual
    relationship. The second complainant did not testify. The appellant denied the
    sexual relationship and exchange of sexually explicit material.

[15]

The
    primary evidence for the Crown came from two videotaped police statements which
    the Crown successfully applied to introduce at trial. In the tapes, the
    appellant admitted that he had had a sexual relationship with the first
    complainant knowing she was 13 years old. He also admitted that he sent a
    picture of his erect penis to the second complainant knowing she was underage
    and that he received a photograph of her buttocks.

[16]

The
    appellant said he only admitted these things as the interview process had confused
    him and police used manipulative tactics such as suggesting that it was no big
    deal for a 20-something-year-old man to have sexual relations with a
    13-year-old girl.

[17]

It
    was not disputed that the appellant had been in special education since grade
    seven, had left high school and was on social assistance as a result of his
    cognitive disability.

The
voir dire
to determine voluntariness of the
    appellants statements to police

[18]

In
    support of the appellants
voir dire
to challenge the admissibility of
    the police statements, the appellant called a clinical and forensic
    psychologist to testify about the appellants level of comprehension, social
    perception and intellectual ability.

[19]

She
    was qualified on consent to give opinion evidence as to his cognition and IQ.
    The Crown elected to call no expert evidence to address the appellants
    intellectual functioning and its effect on his comprehension and social
    perception.

The experts examination in chief

[20]

The
    expert testified that the appellants IQ was only 50, he was below borderline
    functioning, his verbal comprehension and perceptual reasoning were in the
    extremely low range, and his social perception fell at the 0.1 percentile. The
    expert testified that his adaptive skills were alarmingly low and suggested
    that his intellectual functioning would affect many of his cognitive abilities:

[T]here are going to be difficulties in comprehension,
    especially as things become a little more complex or nuanced. When IQ is so low
    it affects so many cognitive abilities and sort of that, you know, being able
    to process information, being able to make accurate judgments. All of these
    things become affected across the board when IQ is low. So, Im not surprised
    that he struggled in understanding.

[21]

The
    expert went on to say that people like the appellant may present at a higher
    level of functioning than their actual understanding:

[I]individuals with low intellectual functioning  learn to
    adapt, so to speak, over the years. They can learn to, sort of, parrot and
    mimic and say things, but that doesnt necessarily mean that their level of
    understanding matches how they may present.

[22]

The
    expert also opined that people with low IQs like the appellant are more vulnerable
    to manipulation and being duped.

Cross-examination of the expert

[23]

In
    cross-examination, the expert further testified about the fact that people like
    the appellant may present at a higher level of functioning than their actual
    understanding:

So, again, at a higher level he could understand that thats a
    rule that you dont have sex with 13-year-olds but, again, the sort of
    assumptions and presumptions that could be made based on his level of cognitive
    functioning could turn that around in a way and, for example, and I dont know
    that this is the case for [the appellant] but I didnt try to have sex with
    her, she tried to have sex with me and that makes it okay. So, when someone is
    that low functioning, they are thinking so concretely that its possible that
    that assumption could be made, which tends to get them into trouble.

[24]

She
    testified however, that she did not review the appellants police statements
    and would be unable to comment on the nuances of how the appellant communicated
    in the statements and how that related to the testing, as it would be more
    for a neuropsychologist to review at that level.

[25]

The
    expert was asked in cross-examination about the notion of malingering. She
    explained that malingering involves intentionally presenting yourself as sort
    of worse off, so to speak, than you are. When asked whether test subjects like
    the appellant could malinger and skew test results, the expert replied:

[T]o malinger cognitive scores when theyre already at floor
    levels, it just doesnt make sense.

[26]

The
    expert used score sheets when evaluating the appellant, but indicated that she
    was reticent to give them to Crown counsel because they contained protected
    third-party information:

[I]ts my duty to protect third-party information according to
    the test producers and according to the Canadian Psychological Association. So,
    what belongs to [the appellant] are his scores, the test protocols with the
    questions are protected and theyre protected to maintain the integrity of the
    tests and to maintain the safety of the public. So, theres a reason why only
    psychologist[s] can purchase, administer, score, and interpret these tests.

[27]

The
    appellants counsel objected to Crown counsels assertion that the expert had
    refused to hand over the scoring sheets, noting she had provided them to
    another psychologist retained by Crown counsel:

I object to the foundation of this question because [counsel]
    knows that, in fact, [the expert] did hand over her scoring sheets to another
    psychologist.

[28]

Crown
    counsel also questioned the reliability of information provided in the
    questionnaire completed by the appellants parents and used by the expert in
    the following exchange with the expert witness:

Q. [Y]oure relying upon these folks to give honest answers to
    your testing and if youve asked them things that maybe are a little bit
    incredulous, their responses, isnt that a concern?

A. Okay. Should we focus on some of the other very negative
    things that they said about as well?

Q. ...but I just want to point to whether theres some red
    flags in your interview with them that would cause you to say, I wonder if
    these people are completely, honestly, reporting about their son to me, the
    same ones Im relying upon for this third test.

A. So, yes, thats always a concern. There arent effort
    measures or measures of malingering for parents that Im aware of.

A: [W]hat Im assessing is his adaptive functioning and given
    that hes been living at home, primarily, for the past few years, that they
    were the best people to be able to fill out the questionnaire.

Q. But them filling out the questionnaire, thats their story
    and thats their view of how either, for real, how [the appellant] is in the
    house on a daily basis, or how they want to portray it to you how [the
    appellant] is in the house on a daily basis.

A. Correct.

The trial judges decision on voluntariness and assessment of
    the experts opinion evidence

[29]

The
    trial judge admitted the expert evidence but gave it little weight. He
    discounted the expert evidence as he held that the expert took a casual
    approach to the assessment of malingering and refused to hand over her score
    sheets.

[30]

Although
    the expert testified that she did not have any significant concerns about
    malingering because the evidence from the appellants health practitioners
    indicated that the appellant had been performing at this level for nearly a
    decade, the trial judge held that further exploration of this issue by way of
    additional testing might have been more in keeping with the traditional
    scientific method rather than simply relying on anecdotal advice from a
    colleague.

[31]

The
    trial judge also found the expert to be argumentative based on the above
    exchange concerning the questionnaire completed by the appellants parents. He
    held that her response was not suggestive of the independent perspective
    generally expected of an expert witness.

[32]

The
    trial judge concluded that the police video statements were voluntary because
    he was satisfied the appellant understood what he said and what was said to
    him:

I have watched each of those videos twice, I poured over the
    transcript of those two videos extensively. Having done so, I am fully
    satisfied that [the appellant] understood everything he said to Sergeant
    McGrath and everything that Sergeant McGrath said to him.

[33]

In
    his reasons for judgment, the trial judge held that There is nothing in his
    words or demeanour  to suggest that he was confused by the questions or the
    process. In so doing, the trial judge did not allude to the appellants very
    low cognitive abilities.

[34]

In
    his reasons for judgment, the trial judge assessed the appellants evidence
    with little reference to the expert evidence. He held that the appellant
    appeared capable of challenging suggestions put to him and did not appear to
    have been duped:

[The appellant] took the stand on two occasions in the course
    of this proceeding, once in the course of the s. 276 application and then again
    during the trial proper. In all, he was on the stand in excess of two court
    days, some eight to ten hours. He also participated in two separate video
    interviews with the police which together were approximately one and a half
    hours in length. I watched [the appellant] very closely while he testified in
    court. I have watched each of the video interviews twice and have perused the
    transcripts of those interviews at length. At no point in those videos or
    during the course of his
viva voce
evidence before me did I have the
    sense that [the appellant] was being duped, or succumbing to suggestions, in
    fact quite the contrary. In my view, [the appellant] fully engaged with
    Sergeant McGrath in the course of each of the police interviews. At no time did
    [the appellant] indicate to Sergeant McGrath that he was either confused or did
    not understand the questions. When Sergeant McGrath made suggestions he did not
    agree with, [the appellant] challenged him without hesitation and even
    corrected him on occasion. To be sure, [the appellant] also made certain
    admissions in the course of those interviews and while he may now regret having
    done so, it did not appear to me that he made those admissions as a result of
    gullibility or dupability. Those statements were thoroughly vetted during the
    course of a five day voluntariness
voir dire
and were ultimately
    admitted into evidence as voluntary. When confronted with a highly experienced
    Crown Attorney who engaged him in a very lengthy and thorough
    cross-examination, [the appellant] was never once shy about standing his ground
    or disagreeing with suggestions put to him by the Crown. Again, I saw nothing
    that made me think [the appellant] was succumbing to suggestion or being duped.

[35]

In
    his reasons for sentence, the trial judge held that he was not satisfied that
    the appellants intellectual challenges rendered him unaware of the potential
    consequences of his actions and decisions:

I also take into account some of the evidence given by [the
    appellant] during the course of the trial, that being as follows:

(1)         [The first
    complainant] testified that [the appellant] told her that he could no longer be
    with her because she was telling people about their relationship and their age
    difference.

(2)         [The appellant]
    testified that he and [the first complainant] agreed not to tell anybody about
    their relationship because he knew it was wrong to be having sex with [the
    first complainant].

(3)         [The appellant]
    testified that he knew that [the first complainant] was, in his words,
    jailbait.

(4)         In one of his
    statements to police [the appellant] acknowledged that he knew the age of
    consent to be sixteen.

(5)         [The appellant]
    also told police that he had sexual intercourse with [the first complainant]
    after finding out she was only thirteen.

(6)         In the course of
    his testimony [the appellant] said of course I would lie to a cop.

In the face of evidence such as that, and in the absence of any
    clear indication by [the expert] that [the appellant] does not appreciate the
    consequences of his actions, I am simply unable to find that [the appellant]s
    intellectual challenges operated in such a way as to render him unaware of the
    potential consequences of the actions and decisions he took which resulted in
    him being brought up before this court.

[36]

The
    trial judge therefore rejected the appellants submission that the appellants
    intellectual disability reduced his moral culpability.

[37]

The
    trial judge concluded that a reduction in sentence was not available because
    the appellants intellectual disability did not [affect] him in such a way
    that he is rendered unaware of the consequences likely to follow from his
    actions.

The issues the appellant intends to raise on appeal

[38]

The
    appellant claims that one of the legal issues he will raise on appeal is that
    it is a legal error for judges to criticize an expert for lack of independence
    based solely on their demeanour in court (in this case, the assertion that the
    expert was argumentative).

[39]

The
    appellant claims this in turn led the trial judge to further err by placing
    little or no weight on the experts opinion and by failing to take into
    consideration the appellants cognitive disability when determining the appellants
    statements to police were voluntary, despite the fact that the expert opined
    that 99.9 percent of the population in that age group would overall have
    better cognitive and adaptive functioning than the appellant.

[40]

The
    appellant claims the combined effect of the fact that it was agreed that the
    appellant was severely intellectually impaired, and the uncontradicted expert
    evidence that such individuals are often more easily manipulated, should have
    left the trial judge in reasonable doubt as to the voluntariness of his police
    statements. Instead, the trial judge relied solely on his own lay opinion that
    from watching the police videos and reviewing the transcripts, the appellant
    appeared to understand what was being said during the interviews.

[41]

The
    appellant claims this had serious implications for the
voir dire
, the
    verdict and the sentence. The appellant claims it also had the effect of
    reversing the Crowns onus to show the appellants statement to the police was
    voluntary:
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30.
    The appellant also seeks leave to appeal the sentence on the basis that the
    trial judge failed to consider his intellectual disability as a mitigating
    effect on sentence.

[42]

The
    Crown cites no authority for discounting the evidence of an expert witness
    based only on their demeanour.

CONCLUSION

[43]

The
    issues raised by the appellant about how to use evidence of limited cognitive
    ability in an assessment of the voluntariness of a statement, whether expert
    evidence should be discounted based on the trial judges assessment of
    demeanour, and whether the trial judge failed to consider whether the
    appellants disability had a mitigating effect on sentence, are not frivolous.
    If one or more of these arguments are successful on appeal, they could affect
    the outcome of the trial and/or the sentence.

[44]

For
    these reasons, the application for bail pending appeal is granted. The Crown
    and the appellant have agreed on the proposed terms of bail if the appellant is
    to be released, and an order is therefore issued in accordance with the terms
    of the draft Release Order filed.

J.A. Thorburn 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. R.G., 2021 ONCA 800

DATE: 20211110

DOCKET: C66650

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.G.

Appellant

Richard Posner and Fiona McNestry,
    for the appellant

Michael Dineen, for the
    respondent

Heard: October 20,
    2021 by video conference

On appeal from the
    conviction entered on November 1, 2018 and the sentence imposed on March 8,
    2019 by Justice James F. Diamond of the Superior Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant appeals from convictions on four
    counts of sexual assault and one count of assault upon his wife. He argues that
    the trial judge erred in his assessment of the complainants credibility, erred
    in rejecting the appellants evidence and erred in his use of cross-count
    similar fact evidence. We do not accept these arguments and dismiss the appeal.

[2]

The appellant and the complainant were married
    on April 19, 2015 in a traditional Punjabi arranged marriage. They had spent
    about 10 to 15 minutes together before both sets of parents agreed to the
    marriage. The complainant described an unremitting course of violent sexual and
    non-sexual assaults. Her every move was controlled and restricted, including
    the nature of her employment and the clothes she wore. She was not allowed any
    of the money she earned, her access to food was restricted and she was
    forbidden to use a cell phone to contact her own family. Police photographed
    the injuries to her body when she finally went to the police on the day she
    left the appellant.

[3]

In contrast, when questioned by police the
    appellant said it was a happy marriage and that there were no problems. He
    denied all of the assaults. At trial, the appellants position was that the
    allegations were ludicrous, that the complainant was lying, and that
    inconsistencies in her evidence showed that she could not keep her false
    stories straight. He largely admitted the degree of control exerted over the
    complainants daily activities. He testified at trial that their relationship
    had deteriorated, describing fights, arguments, and crying, and claimed that he
    decided to let the complainant walk away from the marriage.

Principles governing appeals challenging a
    trial judges assessment of credibility

[4]

A trial judges findings of credibility are owed
    deference. As recently noted by the SCC in
R. v. G.F.
, 2021 SCC 2020, 459 D.L.R. (4th) 375 at para. 81:

a trial judges findings of credibility deserve particular
    deference. While the law requires some articulation of the reasons for those
    findings, it also recognizes that in our system of justice the trial judge is
    the fact finder and has the benefit of the intangible impact of conducting the
    trial. Sometimes, credibility findings are made simpler by, for example,
    objective, independent evidence. Corroborative evidence can support the finding
    of a lack of voluntary consent, but it is of course not required, nor always
    available. Frequently, particularly in a sexual assault case where the crime is
    often committed in private, there is little additional evidence, and
    articulating reasons for findings of credibility can be more challenging.
    Mindful of the presumption of innocence and the Crowns burden to prove guilt
    beyond a reasonable doubt, a trial judge strives to explain why a complainant
    is found to be credible, or why the accused is found not to be credible, or why
    the evidence does not raise a reasonable doubt. But, as this Court stated in
Gagnon
, at para. 20:

Assessing credibility is not a
    science. It is very difficult for a trial judge to articulate with precision
    the complex intermingling of impressions that emerge after watching and
    listening to witnesses and attempting to reconcile the various versions of
    events.

[5]

This is particularly so where the trial judge had the advantage of 24
    days of trial time and where the complainant was on the stand for over ten days,
    including 5.5 days of cross-examination. This trial judge was in a far better
    position to assess the credibility and reliability of the evidence than an
    appellate court reading a record.

Leaving the marriage with honour

[6]

On appeal the appellant submits that the trial
    judge did not assess the central plank of his defence: that the complainant had
    a motive to fabricate false allegations of assault, so that she could leave the
    marriage with honour, in accordance with her traditions. In general, the
    appellants thesis is that according to Punjabi traditions, unless the
    complainant could establish that the marriage was not consummated or that she
    had been subjected to physical abuse, she could not leave the marriage with
    honour, and this would make it difficult for her to remarry within those
    traditions.

[7]

The trial judge questioned trial counsel as to
    whether he intended to call expert evidence to establish those traditions, and
    counsel responded that he did not intend to do so, but intended only to
    establish that the complainant and her own father adhered to those beliefs. The
    trial judge found that neither the complainant nor her father agreed with trial
    counsels suggestions as put to them in cross examination. This was a fair
    interpretation of their testimony.

[8]

The trial judge found the complainant to be an
    honest witness, who did her best to tell the truth. He found that she held off
    reporting the abuse to her family and police for several months because she had
    a sincere and honest belief, or perhaps hope, that things would change and
    placed her faith in the marriage arranged by her parents. She had already
    endured one failed marriage, and very likely had no desire to see her second
    marriage fail as well.

[9]

While the thesis of fabrication for the purposes
    of leaving the marriage with honour is emphasized on appeal, it had little
    prominence in submissions at trial. Trial counsel devoted only a couple of
    lines in otherwise lengthy submissions to the issue.

[10]

We see no basis to interfere with the trial
    judges conclusion that the complainant was an honest witness. The trial judge
    did go on to acquit the appellant of a number of the other counts on the
    indictment, as he was not convinced that the appellant had accurately conveyed
    the substance of what had occurred on those other occasions. There was some
    confusion as to what happened during the incidents upon which the appellant was
    acquitted, in a context, that featured multiple  almost daily  assaults over
    the course of several months.

[11]

The complainants evidence was powerfully
    corroborated by the photographs of her injuries, which she attributed to the
    appellant. Her evidence was detailed, graphic and compelling.

Did the trial judge err in rejecting the
    appellants evidence?

[12]

The appellant argues that the trial judge erred
    in relying on his controlling behaviour and his attitude towards his wife to
    reject his testimony that the assaults did not occur. While he may have been a
    verbally abusive, uncaring and inattentive husband, this does not mean that he
    assaulted his wife.

[13]

The difficulty with this submission is that the
    ongoing assaults were part of the pattern of domination and control used to
    keep the complainant under the appellants and his parents thumbs.
[1]

[14]

The trial judge noted despite his testimony
    that he wanted his marriage to work, and was interested in making it a
    successful relationship, during most of his testimony R.G. seemed dismissive,
    nonchalant, aloof, arrogant and not genuine. Not only did he show little
    interest for the complainant, his testimony confirmed that little interest in
    her existed throughout the course of their marriage.

[15]

Again, as the trial judge noted, the photographs
    of the complainants injuries, for which there was no other credible
    explanation, provided good reason to reject the appellants evidence. The lies
    the appellant told police regarding matters inconsistent with his trial
    testimony also provided a basis to reject his evidence at trial.

[16]

That the complainant left after only 12 weeks of
    marriage, although she had really wanted the marriage to work, supports her
    evidence about the appellants conduct, and also suggests that he was not
    telling the truth when he denied assaulting her. She would not have left unless
    the conditions in that household were truly intolerable.

[17]

We see no basis to interfere with the trial
    judges assessment that the appellant was not a credible witness. The findings
    of fact made by the trial judge were reasonably available to him on the
    evidence, and there was no material misapprehension of the evidence.

[18]

Nor did the trial judge reverse the burden of
    proof. He explicitly referred to the onus upon the Crown and applied the
    requisite standard of proof to acquit the appellant on some of the counts with
    which he was charged.

Similar act evidence

[19]

The appellant acknowledges that a pattern of
    abusive conduct towards a single complainant may be admitted as proof of animus
    or to establish the nature of the relationship between the parties. He submits,
    however, that the trial judge erred by engaging in prohibited propensity
    reasoning by concluding that the trial judge reasoned that because the
    appellant committed one assault, he was likely to have committed another. We
    are not convinced that the trial judge engaged in this line of reasoning, but
    in any event, as this court observed in
R. v. Batte
, 49 O.R. (3d) 321 (C.A.) at para. 102:

For example, if an accused is
    charged with assaulting his wife, evidence that the accused beat his wife on a
    regular basis throughout their long marriage would be admissible. Evidence of
    the prior beatings does much more than suggest that the accused is a bad person
    or that the accused has a general disposition to act violently and commit
    assaults. The evidence suggests a strong disposition to do the very act in issue
     assault his wife.  In such cases, the jury is permitted to reason, assuming
    it accepts the evidence of the prior assaults, that the accused was disposed to
    act violently towards his wife and that he had that disposition on the occasion
    in issue.

[20]

Accordingly, the appeal is dismissed.

Janet Simmons J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.

[1]

The trial judge convicted the appellants mother of assaulting
    the complainant and convicted both of the appellants parents of threatening
    the complainant with death.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : Samson c. Terjanian-Baro, 2021
    ONCA 808

DATE : 20211110

DOSSIER : M52877 (C67037)

La juge Thorburn (la juge saisie
    de la motion)

ENTRE

Blandie Samson

Requérante (Appelante)

et

Nora Terjanian-Baro

Intimée (Intimée)

Blandie Samson, en
    personne

Fraser Dickson,
    pour l
i
ntimée

Date de laudience : le 5
    novembre 2021 par visioconférence

INSCRIPTION

A.

SURVOL

[1]

Lappelante demande une prorogation du délai
    pour présenter une motion à trois juges de la Cour dappel de lOntario de la décision
    du juge de motion
rendue le 4
    octobre 2021, selon larticle 7(5) de la
Loi sur
    les tribunaux judiciaires
,
L.R.O. 1990, chap. C.43
.

[2]

La juge de motion a rejeté la demande d'annuler
    l'ordonnance du greffier du 6 juillet 2021 rejetant l'appel pour cause de
    retard ainsi que les dépens de 750$.

B.

LE CONTEXTE FACTUEL

[3]

Lintimée, Mme Baro, était la cliente de
    lappelante pendant une poursuite dans laquelle elle a eu gain de cause. Elle a
    opposé la demande au sujet des honoraires pour ses services. Elle a pris la
    position que lappelante navait pas satisfait les critères établis par la loi
    et la jurisprudence justifiant lannulation de lordonnance.

[4]

Maître Samson fait valoir que l'entente entre
    elle et lintimée sur ses honoraires, incluait une somme forfaitaire de 30
    000$. La liquidatrice a réduit le compte de Me Samson à 18 871$.

[5]

Me Samson a interjeté une motion à la Cour
    supérieure pour sopposer à la confirmation du certificat de liquidation. Cette
    motion a été rejetée par la juge Champagne le 26 avril 2019.

La décision de la juge de première instance

[6]

La juge Champagne a conclu que, même si laccord
    entre Me Samson et Mme Baro stipulait un montant forfaitaire, que Me Samson a
    obtenu de bons résultats pour Mme Baro, et que Mme Baro avait la capacité de
    payer la somme forfaitaire, l'entente comprenait une somme forfaitaire pour
    l'appel, mais que l'appel n'avait pas procédé. Il ny avait donc aucune erreur
    dans la décision de la liquidatrice.

[7]

Maître Samson a déposé un avis dappel de la
    décision de la juge Champagne à cette cour le 18 juin 2019.

[8]

Il ny avait aucune controverse entre les
    parties que lappel de la décision de la juge Champagne devait être déposé à la
    Cour divisionnaire et non pas à la Cour dappel. De plus, lintimée a consenti
    à un transfert à la Cour divisionnaire, comme le confirme Me Dickson.

La décision du greffier de la Cour dappel
    dannuler lappel

[9]

Le greffier de la cour a avisé les parties quelles
    devraient déposer une motion demandant le transfert avec leur consentement respectif.

[10]

Maître Dickson a indiqué quil consentirait à la
    motion. Pourtant, dans sa lettre datée le 19 mai, 2021, il a indiqué que :

Si vous avez l'intention de procéder de bonne
    foi, veuillez me revenir d'ici le vendredi 21 mai, en indiquant les mesures que
    vous avez prises et en fournissant une liste détaillée et précise de ce que
    vous attendez encore de notre part.

Si tous vos documents ne sont pas déposés
    auprès de la Cour avant la fin des travaux le 2 juin 2021, nous nous opposerons
    à votre requête au motif du retard et demanderons à la Cour de rejeter la
    requête et l'action.

[11]

Les documents que lappelante a soumis à la cour
    nétaient pas suffisants, et le greffier lui a envoyé de nombreux courriels en
    expliquant quelle devrait soumettre tous les documents en même temps. Le greffier
    na reçu aucune réponse de la part de Me Samson après le 21 mai 2021, sachant
    la position de Me Dickson à-propos du délai.

[12]

Après plusieurs périodes de retard, le greffier a
    annulé lappel le 6 juillet 2021.

C.

LA MOTION EN QUESTION

[13]

La motion devant la juge Harvison Young a été
    interjetée après que le greffier a annulé lappel pour retard de perfectionnement.
    La règle 61.13 des
Règles de procédure civile
,
R.R.O. 1990, Règl.
    194 applique en lespèce. Selon
Sickinger c. Sickinger
,
2017
    ONCA 760, W.D.F.L. 5346, les critères sont les mêmes que ceux qui sont nécessaires
    pour obtenir une prolongation pour délai. Ils comprennent :

1. lexplication du retard;

2. la longueur du retard;

3. le préjudice à lintimée; et

4. la justice de la cause.

[14]

La considération primordiale est la justice de
    la cause. Comme cette cour a constaté dans larrêt
Sickinger
, la
    justice de la cause exige une évaluation du fondement de lappel.

[15]

Lappelante a soulevé plusieurs raisons pour
    expliquer le retard. Pourtant, la juge de motion na pas été convaincue que, vu
    ensemble, les raisons justifiaient laccumulation de ces retards, et la
    longueur des retards pendant lesquels elle na pris aucune action pour avancer
    la motion de transfert. La juge de motion a expliqué que :

En tant quappelante, cétait à elle de faire
    avancer lappel. Ici, la seule chose quelle devait faire était de se conformer
    aux demandes du greffier de la Cour dappel pour soumettre la demande du
    transfert à la Cour divisionnaire. En sa qualité davocate, on présume quelle
    est au courant des procédures, tel que la préparation dune motion sur
    consentement. Je trouve que les raisons pour les retards ne sont pas fortes.
    Dailleurs, elles ne justifient pas la durée des retards. Sa prétention que Me Dickson
    avait consentie à la motion de transfert naide pas sa cause. Comme le constate
    Me Dickson, il a consenti il y a deux ans au transfert de lappel, mais il na
    pas consenti à un retard indéfini. De plus, le dossier démontre clairement que Me
    Dickson la avertie quil ne donnerait pas son consentement à une motion pour annuler
    lordonnance du greffier.

[16]

De plus, Me Dickson a soulevé que les retards
    ont causé du préjudice à sa cliente qui attendait depuis longtemps pour
    effectuer la décision de la liquidatrice.

[17]

Comme la juge de motion la dit, la décision
    était assujettie à une norme de contrôle fondée sur des motifs valables, et la
    justice de la cause favorise lintimée aux dépens de lappelante.

D.

CONCLUSION

[18]

Me Samson présente sa demande dinterjeter appel
    de la décision de la juge de motion hors temps.

[19]

La règle 61.16(6) des
Règles de procédure
    civile
exige quune personne qui demande, par voie de motion, lannulation
    ou la modification de lordonnance dun juge dun tribunal dappel en vertu du
    paragraphe 7 (5) ou 21 (5) de la Loi sur les tribunaux judiciaires le fait au
    moyen dun avis de motion, dans les quatre jours qui suivent la date à laquelle
    lordonnance est rendue. Me Samson ne la pas fait dans les quatre jours. Au
    contraire, elle na pas demandé lannulation de lordonnance de la juge
    Harvison Young datée du 4 octobre, avant le 13 octobre.

[20]

Je ne vois aucune raison pour accorder une prorogation
    du délai ni de permettre à Me Samson dinterjeter appel de la décision
rendue le 4 octobre 2021, car il ny pas de
    raison valable pour expliquer le délai portant à la décision du
greffier dannuler lappel le 6 juillet 2021, ni du délai en
    interjetant appel de la décision de la juge de motion. De plus
, je ne vois aucune erreur faite par la juge de
    motion, et

la
    justice de la cause
favorise lintimée aux dépens de
    lappelante.

[21]

Pour ces motifs, la motion est rejetée.

« J.A.
    Thorburn j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: Lockhart v. Lockhart, 2021 ONCA
    807

DATE: 20211112

DOCKET: C68973

Fairburn A.C.J.O., Roberts J.A.
    and Van Melle J. (
ad hoc
)

BETWEEN

Barbara
    Lockhart personally and in her capacity as attorney for property

of June Lockhart

Applicant/Moving
    Party/Responding Party

(Respondent)

and

Robert
    Lockhart personally and in his capacity as attorney for property of

June Lockhart

Respondent/Responding
    Party/Moving Party

(Appellant)

and

June Lockhart personally and in her capacity as named Estate Trustee

of the Estate of Frank Lockhart, deceased, and Christine

Lockhart

Respondents

Robert Lockhart, acting in person

Matthew Rendely and Bryan Gilmartin,
    for the respondent

Jacob Kaufman, for the Estate Trustee, CIBC Trust

Heard and released orally:
    November 8, 2021 by video conference

On appeal from the order of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated December 11, 2021.

REASONS
    FOR DECISION

[1]

These proceedings arise out of the administration of the estate of the
    late Frank Lockhart. The appellant and the respondent are siblings and were
    appointed as attorneys for property for their nonagenarian mother, June
    Lockhart, the widow of their father, Frank Lockhart, who has been found
    incapable of managing her property.

[2]

The appellant and respondent brought motions that were heard at the same
    time but disposed of by the application judge in two separate orders. Among
    other issues, they dealt with: 1) the question of whether their father had made
    a will subsequent to his 1974 Will, that, according to the appellant,
    disinherited their mother; and 2) whether an election should be filed on behalf
    of their mother, under s. 6(1) of the
Family Law Act
,
    R.S.O. 1990, c. F.3 (
FLA
), to take an
    equalization amount as opposed to the benefits provided to her as sole
    beneficiary under her late husbands 1974 Will, and to extend the time for
    doing so.

[3]

In her October 14, 2020 judgment, the application judge allowed the
    respondents motion, appointed CIBC Trust as Estate Trustee, and declared that
    the 1974 Will of Frank Lockhart was his last will and testament. The appellant
    has not appealed the October 14th judgment.

[4]

The application judge dismissed the appellants cross-motion in her
    December 11, 2020 order, which the appellant appeals. The respondent raised a
    threshold issue about the appellants standing to appeal, which we do not
    accept. As a party to the proceedings before the application judge, the
    appellant has standing to appeal.

[5]

Returning to the merits of the appeal, the application judge rejected
    the appellants submission that there was a possibility that his father had
    made a subsequent will in which he had disinherited the appellants mother and
    that the appellant needed more time to find it. Based on the evidence of the
    extensive but ultimately fruitless efforts that had been carried out, the
    application judge was satisfied on a balance of probabilities that there was no
    subsequent will and that the likelihood of one is very remote. She also found
    that the appellant had failed to show that it would be in the best interests of
    Mrs. Lockhart, as sole beneficiary under the 1974 Will, to make an election
    under s. 6(1) of the
FLA
. She was concerned
    that any further delay in the administration of the Estate was unfair and to
    Mrs. Lockharts prejudice alone.

[6]

As a result, the application judge determined there was no basis to
    order the
FLA
election or to extend the time
    for Mrs. Lockhart to make the election past the existing deadline of January
    31, 2021.

[7]

The appellant maintains that the election or his other requested
    alternative remedies are necessary to protect his mother from disinheritance
    under the subsequent will allegedly made by his late father. He also seeks
    leave to appeal the costs award made against him in favour of the respondent.

[8]

The appellant argues that the application judge erred in her treatment
    of the evidence, her failure to provide reasons, and her refusal to entertain
    his requested alternate relief.

[9]

We do not agree. All the appellants arguments stem from his
    disagreement with the application judges findings of fact that are firmly
    grounded in the record and were open to her to make, in particular, her
    findings that there was no subsequent will and the 1974 Will was Mr. Lockharts
    last will and testament. Essentially, the appellant is asking this court to
    retry the matters before the application judge. That is not our task. We see no
    error in the application judges careful and thorough reasons and decision.

[10]

We
    also see no merit in the appellants allegations of bias against the
    application judge. They are groundless.

[11]

The
    appeal is therefore dismissed.

[12]

With
    respect to costs, we find no error in the application judges costs order that
    would displace the high deference owed to her exercise of discretion. Her
    findings underpinning her costs award are amply supported by the record. Leave
    to appeal costs is granted sparingly. There is no basis to grant leave here.

[13]

The
    respondent is entitled to her costs from the appellant in the amount of
    $20,000, inclusive of disbursements and applicable taxes, to be paid within 30
    days by the appellant personally.

Fairburn A.C.J.O.

L.B. Roberts J.A.

Van Melle, J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION:
Cao v. Markham (City), 2021 ONCA 818

DATE: 20211116

DOCKET: C68148

MacPherson, Simmons and
    Nordheimer JJ.A.

BETWEEN

Qiangli
    Cao

Plaintiff (Appellant)

and

City of Markham and Markham
    Public Library

Defendants (Respondents)

Qiangli Cao, acting in person

David Boghosian and Matt Brown, for the
    respondents

Heard: November 15, 2021 by video conference

On
    appeal from the judgment of Justice Lorne Sossin of the Superior Court of
    Justice, dated February 10, 2021, with reasons reported at 2020 ONSC 764.

REASONS FOR DECISION

[1]

Mr. Cao is the CEO of Chinese Publications for
    Canadian Libraries Ltd. (CPCL).

[2]

On a motion for summary judgment, the motion
    judge dismissed Mr. Cao's action against the City of Markham and Markham Public
    Library in which Mr. Cao claimed damages for defamation with racial
    discrimination and dereliction of duty.

[3]

The motion judge found that the action was
    barred by issue estoppel. Mr. Cao appeals from the motion judge's
    decision. At the conclusion of the hearing we dismissed the appeal with reasons
    to follow. We now provide our reasons.

[4]

CPCL had previously sued the City and the
    Library for improper termination of a contract for the supply of Chinese
    language materials to the Library. CPCL's action was dismissed on a summary
    judgment motion and the dismissal was upheld by this court.

[5]

The motion judge who dismissed CPCL's action
    found the City was entitled to terminate the contract without cause on 30 days'
    notice and that it validly did so. However, she also concluded that there were
    more than sufficient grounds to have terminated the contract for cause thus
    demonstrating that there was no bad faith, improper purpose or arbitrariness in
    the termination. In that regard, she made specific findings that CPCL failed to
    comply with price requirements of the contract, missed delivery targets,
    breached collection profile targets and made cataloguing errors. She
    specifically rejected CPCL's submission that the evidence of the City's three
    affiants was false.

[6]

The motion judge who dismissed Mr. Cao's claim
    found his action was based largely on impugning the evidence relied on by the
    CPCL motion judge. The motion judge concluded that the question of the validity
    of that evidence had been finally determined in CPCL's action, that Mr. Cao was
    a privy to that proceeding and that no new issues had been raised that could
    sustain Mr. Cao's action for defamation. We agree with the motion judges
    reasons and conclusion on this issue.

[7]

The appeal is dismissed. The respondents are
    entitled to their costs of the appeal fixed at $2,000, inclusive of
    disbursements and HST.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

I.V.B.
    Nordheimer J.A.