COURT OF APPEAL FOR ONTARIO

CITATION: Dunford v. Otonabee-South Monaghan
    (Township), 2022 ONCA 230

DATE: 20220321

DOCKET: C68623

Feldman, Roberts and Favreau JJ.A.

BETWEEN

Allen Dunford

Plaintiff
(Appellant)

and

The Corporation of the

Township of Otonabee-South Monaghan

Defendant
(Respondent)

Allen Dunford, acting in person

Michael F. Sirdevan, for the respondent

Heard: March 15, 2022 by video
    conference

On appeal from the order of Justice Myrna L. Lack of the Ontario
    Superior Court of Justice, dated June 29, 2020, with reasons reported at 2020
    ONSC 1750.

REASONS FOR DECISION

[1]

Mr. Dunford appeals from the
    dismissal of his action on the respondent Townships motion for summary
    judgment.

[2]

Mr. Dunfords claims against
    the Township are founded on the tort of misfeasance in public office. He
    alleges that from 2005 onwards, the Township abused its public office by deliberately
    and maliciously engaging in a pattern of bad faith dealings with him that were
    intended to and did harm him and his construction business. He based his claims
    on particulars of several interactions with the Township.

[3]

The motion judge found that
    Mr. Dunford had no cause of action against the Township arising from any of the
    circumstances outlined in his amended, amended statement of claim, including
    any cause of action for misfeasance in public office.

[4]

The focus of Mr. Dunfords
    oral argument was that the motion judge misunderstood the cause of action
    pleaded. In essence, he submits that the motion judge erred by failing to look
    at the overall pattern of the alleged instances of the Townships misconduct as
    a continuing cause of action. Had she done so, Mr. Dunford argues, she
    would not have dismissed his claim.

[5]

We are not persuaded that
    the motion judge made any reversible error.

[6]

The motion judges reasons
    demonstrate that she did not misapprehend the cause of action pleaded. She
    reviewed the constituent elements of the tort of misfeasance in public office and
    Mr. Dunfords claims in detail. Importantly, as she indicated in para. 11 of
    her reasons, she was alert to Mr. Dunfords allegation that from 2005,
    officials of the defendant Township working in that capacity pursued a
pattern
    of conduct
in which they exercised bad faith toward him or from which it
    can be inferred that they did so (emphasis added).

[7]

Mr. Dunford structured his
    claims around six separate instances of alleged misconduct by the Township that
    he argued amounted to misfeasance in public office. As a result, the motion
    judge was required to review the particulars and evidence concerning each
    instance to determine if there was a genuine issue requiring a trial or if
    summary judgment should be granted. However, the motion judge did not lose
    sight of the big picture. Mr. Dunfords suggestion that the motion judge took a
    piecemeal approach is belied by her conclusion that no cause of action against
    the Township for misfeasance in public office (bad faith) arises from
any or
    all the circumstances
outlined in the amended, amended statement of claim
    (emphasis added).

[8]

As held by the motion judge,
    the standard to be met in establishing bad faith is high and necessitates
    evidence to demonstrate a municipality has acted in other than the public
    interest. The fact that the Township has made several decisions unfavourable to
    Mr. Dunford does not amount to bad faith.

[9]

Mr. Dunford also raised two
    further issues: i) the motion judge erred in granting summary judgment when
    there were genuine issues requiring a trial; and ii) the motion judge erred in
    failing to give any weight to his affidavit evidence of new particulars of the
    Townships alleged misconduct. These can be dealt with summarily.

[10]

First, this was an entirely
    appropriate case for summary judgment. It is well established that the parties
    were required to put their best evidentiary foot forward and that the motion
    judge was entitled to assume that they had placed all relevant evidence in the
    record. Having reviewed the pleadings and the evidence before her, the motion judge
    concluded that there was no basis for any claim against the Township. We see no
    basis on which to disturb the motion judges findings which were open to her on
    the record. Effectively, Mr. Dunfords submissions amount to a request for this
    court to undertake the analysis afresh and come to a different conclusion in
    his favour. Absent error, which is not present here, that is not our task.

[11]

Finally, we see no error in
    the motion judges decision not to consider the further particulars contained
    in Mr. Dunfords responding materials. This was an exercise of her discretion
    that she was entitled to make in managing the proceedings before her. The new
    particulars related to events that purportedly occurred after the six instances
    of alleged misconduct and the timeframe pleaded in his amended, amended
    statement of claim. The motion judge was required to determine the motion based
    on the claims as framed in the pleadings before her.

[12]

For these reasons, the
    appeal is dismissed.

[13]

Mr. Dunford shall pay to the
    Township its costs of the appeal in the amount of $4,700, inclusive of
    disbursements and applicable taxes.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

L. Favreau
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Prasad, 2022 ONCA 231

DATE: 20220321

DOCKET:
    C66911

Lauwers,
    Pardu and Sossin JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Akshay
    Prasad

Appellant

Ravin Pillay, for the appellant

Kelvin Ramchand, for the respondent

Heard: March 8, 2022 by video
    conference

On appeal from the conviction entered on
    December 20, 2018 and the sentence imposed on May 23, 2019 by Justice David
    Salmers of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted and sentenced for
    two counts of trafficking cocaine. The appellant pursued the conviction appeal
    and abandoned the sentence appeal. The appellant largely contested the trial
    judges factual findings, to which this court owes great deference. We dismiss
    the appeal for the reasons that follow.

(1)

The Factual Context

[2]

In February 2015, as part of a drug enforcement
    investigation, police obtained an authorization to intercept the private
    communications of targets, including Xue Zhong Zhou. On March 18, 2015, the
    appellant and Zhou met in Zhous vehicle for over 20 minutes. Surveillance
    officers observed the meeting. An audio probe installed in the vehicle recorded
    the conversation. On March 19, 2015, the appellant briefly met with Anthony
    Leung and Cuong Lang, who were alleged to be Zhous associates, to take
    delivery of the drugs.

[3]

On April 9, 2015, the appellant and Zhou met
    again in Zhous vehicle. Surveillance officers also observed this meeting,
    which was recorded by an authorized probe.

(2)

The Conviction and the Trial Judges Findings

[4]

The appellant was charged with two counts of
    trafficking cocaine relating to March 19, 2015 (count one) and to April 9, 2015
    (count two).
The trial judge found the appellant guilty
    on both counts.

[5]

On count one, the trial judge found that the recorded
    March 18, 2015 conversation established proof beyond a reasonable doubt of the
    essential elements of trafficking by offer. Before March 18, 2015, police
    surveillance officers had observed Zhou and the appellant multiple times. On
    March 18, 2015, officers saw Zhou in his vehicle and watched the appellant
    enter the vehicle. They were the only occupants. The appellant admitted the
    integrity of the observations, and of police video recordings and photographs.

[6]

The trial judge agreed that the original
    recordings on their own were not sufficiently intelligible to be admissible.
    However, digitally enhanced versions of each recording were prepared by a lay
    expert, and transcripts were prepared from them.

[7]

The trial judge, therefore, found that the
    appellant and Zhou were the only speakers recorded in the March 18, 2015
    conversation. Officer Chris Aiello had listened to Zhous voice on intercepted
    communications and testified that the transcripts correctly identified when
    Zhou and the appellant were each speaking. Officer Ryan Connolly was qualified
    and testified as an expert in the use and sale of cocaine. Relying on the
    original and clarified recordings, the transcripts, and Officer Connollys
    evidence, the trial judge found that the only reasonable inference that could
    be drawn from the March 18, 2015 conversation was that, after negotiations, the
    appellant offered to sell a kilogram of cocaine to Zhou for $53,000 and that he
    intended the offer to be taken seriously by Zhou.

[8]

The trial judge did not accept the Crowns
    theory that the cocaine was delivered on March 19, 2015. The trial judge held
    that intercepted communications from March 19, 2015, to which the appellant was
    not a party, were not admissible as hearsay either under the co-conspirators
    exception or as narrative. Without those communications, the evidence was
    insufficient to establish that cocaine was delivered during the March 19, 2015 meeting
    between Leung and the appellant.

[9]

On count two, the trial judge found that the
    conversation between the appellant and Zhou that took place on April 9, 2015,
    established proof beyond a reasonable doubt of the essential elements of
    trafficking by offer. The appellant entered Zhous vehicle and they were the
    only occupants. They negotiated a cocaine purchase transaction using phrases
    used in the drug trade when talking about cocaine powder and discussing prices
    that could only have been applicable to a cocaine purchase, based on the expert
    evidence. The only reasonable inference was that the appellant offered to sell
    Zhou nine ounces of cocaine for $13,000 or four and a half ounces for $6,500,
    and that he intended the offer to be taken seriously by Zhou.

(3)

Issues on Appeal

[10]

The appellants arguments cluster around three
    issues. The first is the trial judges admission and use of the audio
    recordings and their transcripts. The second is that the expert evidence
    regarding the content of the recorded conversations was not clearly related to
    cocaine, making the conviction unreasonable. The third is that the trial judge
    convicted on an alternative theory of liability not advanced by the Crown, not
    raised with counsel, and which the appellant did not have the opportunity to
    address.

(a)

The Audio Recordings

[11]

The appellant applied to have the audio
    recordings
of March 18, 2015 and April 9, 2015
excluded under s. 24(2) of the
Canadian
    Charter of Rights and Freedoms
. Salmers J. dismissed
    the
Garofoli
application on October 25, 2017, finding that the appellant had not satisfied
    him that there was no basis for issuing the authorization to intercept
    communications, and as such, had not proven a s. 8 breach.
The appellant also applied to have the March 18, 2015 and April 9,
    2015 audio recordings of the intercepted communications excluded from evidence because
    of their poor quality, which inferentially meant that their prejudicial effect
    exceeded their probative value. The trial judge dismissed the application, finding
    that the recordings were relevant and, depending on all of the other evidence,
    might have significant probative value.

[12]

As noted, the trial judge agreed that the original
    recordings on their own were not sufficiently intelligible to be admissible.
    However, digitally enhanced versions of each recording were prepared by a lay
    expert, and transcripts were prepared from them.

[13]

The appellant referred to the expert evidence
    and the possibility that words were lost in the enhancement, or clarification
    exercise. The expert agreed that the digital filter he used to reduce noise
    could remove some audible sounds, particularly within the range of the human
    voice. But that did not happen in this case, as the trial judge found. He
    listened to the original and clarified recordings and found that the clarified
    recordings were virtually identical to the original recordings, and that there
    were no additional or deleted portions of speech in the clarified recordings. We
    see no error in this finding.

[14]

The appellant argues that the trial judge
    impermissibly relied on the evidence of the transcript typist, Christine Solsky,
    whose evidence on the
voir dire
was by agreement
not
admissible as trial evidence. We do not agree that the
    trial judge used Ms. Solskys evidence that way, as becomes clear from the
    discussion that now follows.

[15]

The appellant raises an argument about
    sufficiency of reasons related to this statement by the trial judge:

[T]ranscripts were made of the enhanced or
    clarified recordings and those transcripts were useful to me when trying to
    determine what Zhou and Mr. Prasad were saying in the intercepted March 18,
    2015 conversation. The transcripts of the enhanced or clarified recordings were
    prepared by Christine Solsky, a civilian police employee. Prior to preparing
    the transcripts, she was told that the speakers were Zhou and Mr. Prasad. Prior
    to preparing the transcript, Ms. Solsky heard Zhous voice on recordings from
    the police media library. Zhou and Mr. Prasad have different voices and
    speak English with different accents. Ms. Solsky testified that although it was
    sometimes difficult, she could tell which of Zhou or Mr. Prasad was
    speaking in the recordings. In her preparation of the transcripts, Ms. Solsky
    listened to the recordings many times to attempt to determine what was spoken
    and by whom.

I also listened many times to the recordings.
    Almost, but not always, I agreed with Ms. Solskys transcripts identifications
    of the speakers and what was said. When I found any differences between the
    recordings and the transcripts, either about what was said or by whom, I relied
    on what I heard in the recordings when deciding this case.

Related to the preceding argument,
    the last quoted paragraph makes it abundantly clear that the trial judge did
    not rely substantively on Ms. Solskys evidence.

[16]

The difficulty, asserts the appellant, is that
    the trial judge did not set out in his reasons the differences he found between
    the transcripts and his own interpretation of the audio, which accordingly
    prevents meaningful appellate review. While it would have been preferable for
    the trial judge to have noted the differences, we draw the inference that the
    differences were neither numerous (Almost, but not always, I agreed), nor
    material, or he would have identified and highlighted them. The argument on
    sufficiency of reasons fails. It would have had more force if the appellant had
    identified places where the transcripts and the enhanced recordings might have
    led to confusion, but he did not. We infer that there were none.

(b)

An Unreasonable Verdict

[17]

The appellant argues that the drug-related lingo
    used by the appellant and Zhou in their discussions could not unambiguously be
    related to cocaine. Counsel pointed to several passages to suggest that some
    other drug was also under discussion. The trial judge relied on the expert
    evidence of Officer Connolly, whom he qualified as an expert and who has
    testified on the subject many times.

[18]

The trial judge relied on Officer Connollys
    testimony, and found:

[D]uring the March 18
th
, 2015
    conversation, Zhou and Mr. Prasad began talking about drug trafficking
    almost immediately after Mr. Prasad entered Zhous Honda Accord. They discuss
    money owing by Zhou to Mr. Prasad. Several times during the conversation
    they used the words, key, and brick, very commonly used in the drug trafficking
    subculture to describe a kilogram of powder cocaine. The words were used in a
    context where the only reasonable inference is that Zhou and Mr. Prasad
    were discussing cocaine.

[19]

An important part of the context was the price
    discussed in the conversations on March 18 and on April 9. These are factual
    findings to which this court owes great deference. The appellant has not
    established that the trial judge made any errors in the assessment of the
    expert evidence as applied to the evidence about the transactions between Zhou
    and the appellant. We do not find the verdict unreasonable.

(c)

The Alternative Theory of Liability

[20]

The appellant argues that the trial judge
    convicted on an alternative theory.

[21]

On count one, the trial judge convicted,
    stating:

For all of those reasons, the evidence has
    been proven beyond a reasonable doubt that Mr. Prasad committed the offence of
    trafficking cocaine by offer to Zhou on March 18
th
, 2015. In
    particular, on that day Mr. Prasad offered to traffic a kilogram of cocaine to
    Zhou for $53,000 and he made that offer intending that it would be taken
    seriously by [Zhou]. Count one [has] been proven beyond a reasonable doubt.

[22]

Count one on the indictment referred to trafficking
    on or about March 19, 2015:

THAT Akshay PRASAD, on or about the 19th day
    of March in the year 2015 at the City of Toronto in the Toronto Region did traffic
    in a substance included in Schedule I of the
Controlled Drugs and
    Substances Act
, to wit: cocaine, thereby committing an offence contrary to
    Section 5(1) of the
Controlled Drugs and Substances Act
.

[23]

The appellant argues that it was fundamentally
    unfair for the trial judge to give effect to
an alternative
    theory of liability not advanced by the Crown, not raised
with counsel, and which the appellant did
    not have the opportunity to address. He puts the argument in his factum in the
    following manner:

The appellant respectfully submits that he was
    caught by surprise by the trial judges finding and could not have foreseen a
    conviction on the day prior to the date set out in the indictment based on an
offer
. All parties conducted the trial
    on the basis that the Crown theory was that count 1 alleged the
    trafficking of one kilogram of cocaine on March 19
th
to Leung. Many
    decisions were made during the course of the trial based on that theory
    presented. For example, the defence made numerous concessions, abbreviated
    cross-examinations and, importantly, opted not to call a defence.

[24]

In questioning from the
    bench, the appellant was unable to say how the defence would have differed had
    the focus been on the offer on March 18 rather than on the alleged delivery on
    March 19.

[25]

The Crown pointed out
    that the indictments charging language for both counts is the same: did
    traffic in a substance. The charge covers the whole of the transaction and one
    continuous chain of events. Just as the offer alone was sufficient to support
    the finding that the appellant committed the offence by offer on April 9, so it
    was to commit the offence by offer alone on March 18, even if the delivery on
    March 19 was not proven. The Crown noted that the appellant did not request
    particulars of the charges before the trial. Further, the Crown referred to the
    offer to traffic several times in submissions to the trial judge, so it was no
    surprise to the defence. Trial defence counsel stated: the Crown will say, well
    this is an offer, and its an offer for something that happened on the 19
th
.

[26]

The offer was plainly
    made on March 18, 2015, which in itself completes the offence of trafficking.
    We are unable to discern any prejudice to the appellant in the trial judges
    conviction respecting the offer on March 18, despite the different date
    specified in the indictment. It was a continuous chain of events starting on
    March 18. Consummation by delivery on March 19 was not an essential element.

[27]

The appeal is
    dismissed.

P.
    Lauwers J.A.

G.
    Pardu J.A.

L.
    Sossin 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. J.M., 2022 ONCA 233

DATE: 20220322

DOCKET:
    C68627

Tulloch,
    Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

J.M., acting in person

Breana Vandebeek, duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: January 10, 2022 by video conference

On appeal from the conviction entered on
    January 11, 2020 by Justice Jill Copeland of the Superior Court of
    Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

The appellant was found guilty and convicted of
    one count of sexual assault, following a trial by judge and jury. He was
    sentenced to 18 months custody. He now appeals his conviction.

[2]

On appeal, the appellant raises six grounds, all
    relating to alleged errors he claims the trial judge committed in her charge to
    the jury.

[3]

All of the appellants grounds of appeal can be
    summed up as alleging an inadequacy in the trial judges jury charge. He
    submits that the trial judge erred in her instructions on the use the jury
    could make of the DNA evidence; failed to connect the defence theory to the
    facts of the case; failed to instruct the jury on the limited use of the expert
    biological evidence; failed to instruct the jury that the complainants
    evidence was to be viewed objectively and critically; and failed to instruct
    the jury on whether the appellant knew the complainant did not consent.

[4]

For the reasons that follow, the appeal is
    dismissed.

[5]

The appellant and the complainant knew each other
    as they both worked at the same place. On April 2, 2017, they planned to meet
    later that evening at the appellants apartment. Prior to their meeting, they
    discussed how the evening would unfold. According to the complainant, she had indicated
    to the appellant on a previous occasion that she was romantically interested in
    him but told him she did not want to have sex with him.

[6]

Once she arrived at the appellants apartment,
    and their moods relaxed, they engaged in mutual consensual oral sex. Sometime
    after, the appellant tried to insert his penis into the complainants vagina,
    but the complainant told him she did not want to have sexual intercourse. A
    short time later, the appellant again tried to have sexual intercourse with the
    complainant, and was successful in penetrating the complainant, at which time
    she said no, I dont want to have sex. The appellant did not stop but instead
    continued.

[7]

According to the complainant, the second
    incident of sexual intercourse lasted for about 10 minutes.

[8]

Eventually the appellant fell asleep, at which
    time the complainant texted a friend, who sent a third-party to pick her up.
    The complainant and the third party went straight to the police and provided a
    statement. A forensic expert subsequently analyzed various samples from the
    complainants underwear. DNA testing revealed that the substance on the
    complainants underwear was likely semen.

[9]

At trial, the only issue was consent.

[10]

The appellant conceded that there was touching
    for a sexual purpose. The trial turned on whether the Crown had proven beyond a
    reasonable doubt that the complainant had not consented to sexual intercourse,
    and whether the appellant knew that the complainant had not consented.

[11]

We see no merit to any of the appellants grounds of appeal.

[12]

It
    is well established that the adequacy of a charge must be considered in the
    context of the trial as a whole, as Watt J.A. explained in
R. v. P.J.B.
, 2012 ONCA 730, 298 O.A.C. 267,
    at para. 49 [citations omitted]:

Jury charges do not take place in isolation,
    but in the context of the trial as a whole. Appellate review of the adequacy of
    jury charges must acknowledge this reality, especially where the complaint is
    about the extent to which the trial judge has reviewed the evidence in final
    instructions. Appellate review on this issue includes consideration of the
    complexity and volume of the evidence adduced at trial, the extent of its
    review by counsel in their closing addresses, the length of trial proceedings,
    the issues to be resolved by the jury, the effect of a more complete and
    balanced review of the evidence, and whether counsel objected to the charge on
    the ground advanced on appeal. The test is one of fairness. Provided the
    evidence is left to the jury in a way that will permit the jurors to fully
    appreciate the issues raised and the defences advanced, the charge will be
    adequate.

[13]

The complainant alleged and testified that while
    she consented to some aspect of the sexual contact with the appellant, she did
    not consent to sexual intercourse. The DNA testing suggested that the fluid
    found on the complainants underwear was likely semen. The trial judge dealt
    with this evidence and instructed the jury as to what use they could make of
    the DNA evidence. In her charge to the jury, the trial judge also clearly and
    succinctly set out the position of the defence and that of the Crown and
    related the relevant evidence for each position to assist the jury in their
    deliberation. There was no objection to the charge by the defence.

[14]

The trial judge carefully and thoroughly
    reviewed the evidence in her charge to the jury and instructed the jury on the
    essential elements of the offence of sexual assault that the Crown was required
    to prove beyond a reasonable doubt. She highlighted for the jury that the live
    issue in the trial was that of consent; that the Crown was obliged to prove
    beyond a reasonable doubt, based on all the evidence adduced at the trial, that
    the complainant did not consent to the sexual intercourse; and that in order
    for them to convict the appellant, they must also find that the appellant knew
    that the complainant did not consent to the alleged sexual intercourse.

[15]

The trial judge further noted that the Crowns evidence
    turned on the credibility and reliability of the complainants evidence. She painstakingly
    reviewed the complainants evidence and pointed out various inconsistencies in her
    evidence.

[16]

We see no error in the jury charge as alleged. A
    jury charge must be viewed as a whole and assessed as to its functionality. As
    this court recently noted in the case of
R. v. R.D.
, 2020 ONCA 23, at
    para. 10:

The standard required of a jury charge is
    adequacy, not perfection. The appellate courts approach is functional,
    assessing the adequacy of the charge as a whole, in the context of the trial in
    which the instructions were given, and in light of its purpose:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at paras. 32-41;
R. v. Newton
,
    2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must
    provide the jury with a sufficient understanding of the facts as they relate to
    the relevant issues from the trial:
Jacquard
, at para. 14. The trial
    judge has an obligation to review the substantial parts of the evidence and to
    relate the evidence to the issues to be decided. What is necessary are
    references to the evidence that are sufficient, in the context of the case and
    the entirety of the charge, to alert the jury to the specific parts of the
    evidence that are of significance to its decision on particular issues and to
    the positions of the parties on those issues. The role of the trial judge is to
    decant and to simplify:
R. v. Huard
, 2013 ONCA 650, 302 C.C.C.
    (3d) 469, at paras. 53 and 56.

[17]

This was a case that turned on the evidence of
    the complainant. The appellant did not testify. The case turned on whether the
    jury believed the complainant that she did not consent to the sexual
    intercourse. The trial judge thoroughly reviewed the evidence and highlighted
    all the relevant evidence, including areas of inconsistencies in the
    complainants evidence. The trial judge also reminded the jury throughout her
    charge of the onus of proof on the Crown to prove the guilt of the appellant
    beyond a reasonable doubt, and that the appellant was innocent until proven
    guilty based on the evidence beyond a reasonable doubt.

[18]

In all the circumstances, we see no merit to any
    of the grounds of appeal. As such, the appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A.
    Harvison Young 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. Vigon-Campuzano, 2022 ONCA
    234

DATE: 20220318

DOCKET: C69181

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Vigon-Campuzano

Appellant

Daisy McCabe-Lokos, for the appellant

Gregory Furmaniuk, for the respondent

Heard: March 9, 2022, by video
    conference

On appeal from the conviction entered on
    January 29, 2020 by Justice David E. Harris of the Superior Court of
    Justice, sitting without a jury, with reasons reported at 2020 ONSC 587.

REASONS FOR DECISION

[1]

Fernando Vigon-Campuzano was convicted of two
    counts of sexual assault. He appeals against his conviction.

[2]

At the oral hearing, we dismissed the appeal and
    indicated that reasons would follow. These are those reasons.

BACKGROUND FACTS

[3]

The appellant was a registered massage therapist
    who was convicted of sexually assaulting two female clients, Ms. M.-B. in
    August 2016, and Ms. H. in March 2016.

Ms. M.-B.

[4]

On August 5, 2016, Ms. M.-B. went to Be Relax, a
    massage establishment at Pearson Airport in Toronto, for a massage. The
    appellant was her masseur.

[5]

Before the massage, Ms. M.-B. undressed but left
    her underwear on. The massage began with her lying on her front. At some point,
    the appellant asked Ms. M.-B. to take off her underwear, which she did.

[6]

The appellant began massaging Ms. M.-B.s inner
    thigh, near her vagina. She had never experienced this in other massages and
    was confused about whether this was appropriate. He massaged her again on her
    inner thigh, near her vagina. She tapped the appellant with her leg to indicate
    that she was not comfortable with this and told him not to touch her there. He
    stopped massaging the area.

[7]

Shortly after, the appellant again massaged her
    inner thigh. Ms. M.-B. did not recall if she said anything. The appellant asked
    Ms. M.-B. whether she wanted a breast massage. She said no. Nonetheless, he
    massaged her breasts. Ms. M.-B. froze and did not say anything.

[8]

The appellant then put his hand on top of Ms.
    M.-B.s vagina and moved his hand in small quick motions. She felt vulnerable
    and did not say anything. She became physically aroused. The massage ended
    shortly after, and Ms. M.-B. left the establishment.

[9]

Soon after the massage, Ms. M.-B. disclosed the
    incident to a friend over text message. She testified that, prior to the
    massage, she had been struggling with feelings of lust as being in conflict
    with her religious beliefs. She also testified that she felt guilt about not
    resisting the appellant more clearly.

[10]

Eventually, she disclosed the incident to the
    police.

Ms. H.

[11]

On March 17, 2016, Ms. H. went to the Great
    American Back Rub in Mississauga for a massage. She testified that this was her
    second massage with the appellant, but she agreed that she may have seen him
    more than that.

[12]

Ms. H. undressed but left her underwear on. At
    some point during the massage, the appellant asked Ms. H. to take off her
    underwear, which she did. He later asked her if she wanted a breast massage,
    and she gave him permission to do one.

[13]

Later on in the massage, the appellant pressed
    into Ms. H.s vagina area with his hands. She was shocked and froze. He then
    inserted a finger into her vagina. She flinched and he told her to relax. She
    asked him to stop. The massage ended not too long afterwards, and Ms. H. left
    the establishment.

[14]

Ms. H. submitted a complaint to the
    establishment through an online form but did not specify exactly what had
    occurred. She also told her psychotherapist and her sister. She filed a
    complaint with the College of Massage Therapists and eventually filed a
    complaint with the police.

The Appellant

[15]

At the time of the events, the appellant worked
    as a registered massage therapist at different establishments as an independent
    contractor. He testified that he gave Ms. M.-B. a massage. He testified that
    she removed her underwear herself and that he massaged her inner thigh, but he
    denied giving her a breast massage and denied touching her vagina or her
    vaginal area.

[16]

He testified that he gave Ms. H. a massage. He
    did not ask Ms. H. to take off her underwear. He testified that he massaged her
    femoral triangle, near the bikini line, but he denied touching Ms. H.s vagina
    or engaging in vaginal penetration.

PROCEEDING BELOW

[17]

The central question at trial was whether the
    sexual touching occurred.

[18]

Ms. M.-B.s text messages to a friend after the
    massage were admitted and relied upon by the Crown and defence for the purpose
    of narrative. Her text messages were as follows, with the reply omitted:

Yeah today was just kinda off because I was
    struggling with lust/masturbation. But something happened tonight at the
    airport that really caught me off guard. I went to go get a back massage and
    the masseuse ended up fingering me and feeling me up. I told him a few times to
    stop but he did not. And Im so confused because I really enjoyed it
    physically, but I also feel so violated.

I could have been more assertive in saying no
    and telling him to stop. But I also feel that saying no once should have been
    enough. Im so confused.

On the one hand I think to myself, I really
    enjoyed that handsome Cuban bringing me to orgasm. But on the other hand I
    think to myself I feel guilty for being promiscuous Even though I asked him
    to stop even before it got really intense.

Actually the more I think about it the more I
    feel assaulted.

[19]

The trial judge noted that Ms. M.-B. was a
    strong witness. She was precise and candid in cross-examination. The trial
    judge disagreed with the appellants contention that Ms. M.-B. suffered from
    confusion which indicated a likelihood of misperception on her part and
    detracted from her credibility and reliability.

[20]

The trial judge held that Ms. M.-B.s text
    messages did not demonstrate confusion. He found that they demonstrated Ms.
    M.-B. thinking through what happened to her and reflected mental clarity.
    Further, she never expressed uncertainty on the central issue, that she
    experienced sexual touching.

[21]

The trial judge also found that the guilt Ms.
    M.-B. expressed about not resisting the appellant was due to the internalized
    societal expectation that women must protest vociferously when sexually touched
    against their will. He noted that a trial judge, in evaluating sexual assault
    claims, must avoid stereotypes and is obliged to put him or herself into the
    psychological shoes of the complainant. He concluded that it was entirely
    normal for a massage client to be uncertain about how to proceed after
    experiencing an assault during a massage. He also concluded that deriving
    physical pleasure from the assault was well within the psychological norm and
    any resulting guilt was normal psychological fallout from a sexual assault.

[22]

The trial judge found that Ms. H. was a good
    witness. Although she did not remember all the details of the massage, her
    memory was quite good on the central issues, particularly the vaginal penetration.
    The trial judge also found that the cross-examination of the appellant did not
    lead to any major discrepancies which would cast doubt on his evidence.

[23]

The trial judge granted the Crowns similar fact
    application to use Ms. M.-B.s evidence to enhance Ms. H.s credibility, and
vice
    versa
.

[24]

The trial judge conducted a
W.(D.)
analysis:
R. v. W.(D.)
,

[1991] 1 S.C.R. 742. While
    there was nothing in the appellants evidence, when viewed in isolation, that
    was implausible or unreliable, when juxtaposed against the Crowns case he
    rejected the appellants evidence. The strength of the Crowns case, and the
    reinforcing evidence of the complainants, undermined the viability of the
    appellants evidence and his denial. The trial judge noted that this reasoning
    alone could constitute a
W.(D.)
error, as it would reflect a choice
    between the Crown and defence evidence. However, he considered whether the
    appellants evidence left a reasonable doubt in the context of the entire
    evidence, including that of the complainants. Relying on
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, he concluded that [t]he Crowns evidence, enhanced with the
    similar fact circumstantial evidence, predominates [the appellants] evidence
    and demonstrates to the high beyond a reasonable doubt level of certainty that
    it is false. The trial judge found that, on the evidence as a whole, the Crown
    had proven guilt on both counts beyond a reasonable doubt.

[25]

The trial judge concluded that the elements of
    the offences were made out. The touching occurred as both complainants
    testified to, it was sexual touching, and there was no consent. The trial judge
    convicted the appellant on both counts.

ANALYSIS

[26]

The appellant raises two grounds of appeal. First,
    the appellant argues that the trial judge erred in reaching conclusions about
    Ms. M.B.s credibility in the absence of expert evidence. Second, the appellant
    argues that the trial judge failed to provide reasons for rejecting the
    appellants evidence.

[27]

Each is addressed in turn.

(1)

The trial judge did not err in assessing Ms.
    M.-B.s credibility

[28]

The appellant argues that the trial judge
    improperly reached conclusions about the complainant Ms. M.-B.s psychological
    response to the alleged sexual assault.

[29]

Part of the defence theory of the case was that
    Ms. M.-B.s state of guilt and confusion after the incident detracted from her credibility
    as a witness.

[30]

The trial judge rejected this theory. Putting
    himself in the shoes of the complainant, he found her uncertain reaction to the
    surprising and perplexing incident to be in keeping with the normal fallout
    from a sexual assault in these circumstances.

[31]

The appellant argues that such conclusions were
    not open to the trial judge to make on the basis of judicial notice alone, and
    neither party produced expert evidence at the trial. The appellant relies on
R.
    v. J.M.
, 2021 ONCA 150, 154 O.R. (3d) 401, where this court overturned a
    conviction on multiple grounds, including that the trial judge erred in finding
    that the complainants failure to resist a sexual assault could be explained
    based on a parallel between the complainants conduct and battered wife
    syndrome.

[32]

We reject this argument. In
J.M.
, the
    trial judge invoked a specific psychological syndrome, which had been
    established in
R. v. Lavallee
, [1990] 1 S.C.R. 852, on the basis
    of expert evidence
(see
J.M.
,
at para. 60)
. In
J.M.
,
    this court found that the trial judge erred by finding parallels between the
    complainant and the syndrome without expert evidence. In this case, by
    contrast, the trial judges reference to Ms. M.-B.s psychological reaction was
    simply an aspect of the finding that her reaction did not detract from her
    credibility and reliability, as the appellant suggested. Ultimately, the trial
    judge found that she was a credible and reliable witness based on multiple
    factors, whose evidence, when enhanced with the similar fact evidence from Ms. H.,
    he accepted over the evidence of the appellant. This finding that Ms. M.-B.s
    reaction did not detract from her credibility and reliability did not require
    an expert assessment.

[33]

This ground of appeal is dismissed.

(2)

The trial judge provided sufficient reasons for
    rejecting the appellants evidence

[34]

The appellant denied the complainants accounts
    of the incidents. He argues that the trial judge did not identify
    inconsistencies or problems with his testimony and failed to explain why he
    rejected the appellants evidence.

[35]

The appellant objects, in particular, to the
    following rhetorical questions posed by the trial judge in his reasons, at
    para. 70:

If the analysis stopped there, this reasoning
    could be said to constitute a
W.(D)
error. A choice is being made
    between the Crown and defence evidence. However, the critical step bridging the
    factual findings and leading to a proper legal conclusion is the application of
    the beyond a reasonable doubt standard of proof. Has the Crown proved beyond a
    reasonable doubt, that the version of each complainant is true despite the
    contrary evidence of [the appellant]? Or, from the defence viewpoint, does [the
    appellant]s evidence leave a reasonable doubt in the context of the entire
    evidence and the evidence of the complainants? I do not need to positively
    believe [the appellant] it is sufficient if his evidence leaves a reasonable
    doubt.

[36]

According to the appellant, the trial judge
    asked the proper questions but failed to provide the required answers. Instead,
    the appellant argues the trial judge cited this courts decision in
J.J.R.D.
in lieu of addressing these crucial questions. In his reasons, the trial judge stated,
    at paras. 71-73:

Justice Doherty in
R. v. J.J.R.D.
215
    C.C.C. (3d) 252, [2006] O.J. No. 4749 (C.A.), leave to appeal dismissed [2007]
    1 S.C.R. x (note), rejected an argument that a trial judges reasons failed to
    explain his rejection of the accuseds evidence. The only real reason stated by
    the trial judge for the rejection was the opposing strength of the Crown
    evidence.

In his reasons, Justice Doherty touched on the
    interaction between the factual findings and the application of the burden of
    proof to a credibility trial in which the accused testifies. He said:

53 The trial judge rejected totally the
    appellant's denial because stacked beside A.D.s [the complainants] evidence
    and the evidence concerning the diary, the appellants evidence, despite the
    absence of any obvious flaws in it, did not leave the trial judge with a
    reasonable doubt. An outright rejection of an accused's evidence based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    conflicting credible evidence is as much an explanation for the rejection of an
    accused's evidence as is a rejection based on a problem identified with the way
    the accused testified or the substance of the accused's evidence.

This aptly describes the process of reasoning
    in this case. The Crowns evidence, enhanced with the similar fact
    circumstantial inference, predominates [the appellant]s evidence and
    demonstrates to the high beyond a reasonable doubt level of certainty that it
    is false. On all of the evidence, the high degree of certainty required has
    been met. This fully comports with
W.(D.)
and the importance of
    ensuring that accused persons are only found guilty if the Crowns case against
    them is proved beyond a reasonable doubt.

[37]

We reject the appellants submission that the
    trial judge failed to explain why his evidence was rejected.

[38]

J.J.R.D.
deals
    with challenges to the sufficiency of reasons for conviction and an argument on
    appeal that the trial judge did not explain why he rejected the evidence of an
    accused. Despite the trial judges reference to
J.J.R.D
. it is apparent
    from his reasons that he did not apply that authority in such a fashion as to
    dilute the burden of proof. He rejected the appellants evidence because of the
    formidable evidence stacked beside it in this case, especially the reliable
    accounts of the incidents by credible complainants. The trial judges rejection
    of the appellants evidence was based on a considered and reasoned acceptance
    beyond a reasonable doubt of the truth of the complainants evidence, enhanced
    with the similar fact circumstantial inference. His reasons were sufficient.

[39]

This ground of appeal is dismissed as well.

DISPOSITION

[40]

For these reasons, we dismiss the appeal.

P.
    Lauwers J.A.

G.
    Pardu J.A.

L. Sossin
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Windsor-Essex Catholic District
    School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA
    235

DATE: 20220323

DOCKET: C69463

Fairburn A.C.J.O., Paciocco and
    Sossin JJ.A.

BETWEEN

Windsor-Essex Catholic District
    School Board and Conseil Scolaire Catholique Providence

Applicants (Respondents)

and

2313846 Ontario Limited o/a
    Central Park Athletics

Respondent (Appellant)

Paul J. Pape and Cristina Senese, for
    the appellants

Jessica A. Koper and Sandra Dawe, for
    the respondents

Heard: March 17, 2022 by video
    conference

On appeal from the judgment of Justice
    Munroe of the Superior Court of Justice, dated April 23, 2021.

REASONS FOR DECISION

[1]

This is an appeal from a decision interpreting a
force majeure

clause contained in commercial leases between the respondent school boards
    and the appellant, a commercial multi-purpose, sporting facility.

[2]

The respondents rented space from the appellant. As a result of the
    province wide lock-downs owing to COVID-19, the appellant was unable to open
    its doors from March 17 to August 11, 2020 (the relevant period), and the
    respondents were unable to use the facility.

[3]

The respondents brought an application for a decision that the
force
    majeure

clause in their respective leases should apply to abate the
    rent during the relevant period. That argument found favour with the
    application judge who found that, considered within its proper context, the
force
    majeure

clause applied and rent was abated.

[4]

There is no dispute that the application judge was right in finding that
    the government lockdowns, as a result of COVID-19, triggered a
force
    majeure

event, as defined in the leases. Nor is there dispute that
    the appellant could not provide the respondents with the leased space for its
    intended and contracted use because of the lockdowns. The dispute lies in the
    effect of the triggering event on the parties contractual obligations.

[5]

The parties agree that the application judge accurately
    summarized their positions on the application. To this end, the application
    judge summarized the appellants argument as follows:

[The appellant] argues that under the lease provisions, the
    triggering event excused the landlord from providing the leased premises but
    did not excuse the tenants from paying rent. The school boards obligation to
    pay rent was not impacted by any pandemic order. Consequently, under the lease,
    there is no basis to cease paying rent. To bolster this position, [the
    appellant] emphasizes the language in Clause 15.14: In the event
the Landlord claims a Force Majeure
has prevented the
    Landlord from enabling the Tenant to make use of the Leased Premises or operate
    its programs (emphasis added), asserting that [the appellant] does not claim
    and never has claimed a
force majeure
.
This fact, according to
    [the appellant] negates the following rent abatement provision.

[6]

Clause 15.14 reads as follows:

In the event
the Landlord claims
a
    Force Majeure has prevented the Landlord from enabling the Tenant to make use
    of the Leased Premises or operate its programs in the Centre, Rent and
    Additional Rent shall fully abate during such period until the Landlord has
    restored the ability of the Tenant to use the Leased Premises and operate its
    programs in the Centre. [Emphasis added.]

[7]

Ultimately the application judge rejected the appellants argument,
    finding that the appellant, because of the government lockdown orders, was
    prevented from performing a term of the lease, providing the leased space for its
    contracted use. The application judge determined that the consequences were
    twofold under the lease: (1) the landlord was excused from its contractual
    obligation to provide the leased space; and (2) the contractual rent obligation
    of the tenants was abated during the relevant period.

[8]

The appellant argues that the application judge erred by reading the
    words the Landlord claims out of Clause 15.14. The appellant argues that the
    Landlord did not claim a
force majeure
event, (even though it is
    recognized that there was a
force majeure

event.) According to the appellants argument, only that
    claim could cause the abatement of the rent. The failure of the trial judge to
    give effect to those words  the Landlord claims  is said to constitute an
    error of law.

[9]

Respectfully, we cannot accept the appellants position. We do not see
    the application judge as having ignored the expression the Landlord claims.
    Rather, read as a whole, the reasons make clear that the application judge was
    alive to the appellants argument, and particularly to the emphasis upon those
    words, but rejected the submission that they held the meaning that the
    appellant continues to advance in this court.

[10]

This
    is not a case involving an extricable error of law. Rather, it is a case about
    contractual interpretation involving questions of mixed fact and law and
    therefore engages the standard of palpable and overriding error. We see none.

[11]

In
    an exercise of contractual interpretation, the application judge first,
    accurately recounted the appellants argument and second, rejected that
    argument. It was open for him to do so. The reasons are clear as to how he
    resolved the matter. The application judge found that the triggering event was
    the lockdown, which resulted in the closure of the appellants facility. When
    that facility was closed by the appellant, it could not and did not provide the
    respondents with the leased space. According to Clause 15.14, once that
    happened, the rent had to  shall  fully abate during the relevant period.

[12]

The appeal is dismissed.

[13]

Costs in the all-inclusive amount of $15,000 will be paid by the
    appellant to the respondents.

Fairburn A.C.J.O.

David M. Paciocco J.A.

L. Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Amikwabi v. Pope Francis, 2022
    ONCA 236

DATE: 20220322

DOCKET: C69230

Fairburn A.C.J.O., Paciocco and
    Sossin JJ.A.

BETWEEN

Stacy Amikwabi, Shawn Brennan,
    George Fayad, Joshua Alas-Wilson, Alisa Tojcic, Jane Doe, John Doe

Plaintiffs (Appellants)

and

Pope Francis, The Holy See, The
    State of the Vatican, The Society of Jesus, HM Queen Elizabeth II, The Order of
    the Garter, The House of Windsor (formerly Saxe Cobourg Gotha), Global Vaccine
    Alliance (GAVI), the UNs World Health Organization/Public Health Organization
    of Canada, Bill and Melinda Gates Foundation, Prime Minister Justin Trudeau,
    Dr. Theresa Tam, Premier Doug Ford, Christine Elliott, Mayor Jim Watson,
    Attorney General of Canada, the Attorney General for Ontario

Defendants (Respondents)

Michael Swinwood, for the appellants

Marshall Jeske, for the respondent
    Attorney General of Canada

Ravi Amarnath, for the respondent
    Attorney General of Ontario, Premier Doug Ford and Christine Elliott

Stuart Huxley, for the respondent Mayor
    Jim Watson

No one appearing for the remaining
    respondents

Heard and released orally:
    March 17, 2022 by video conference

On appeal from the order of Justice Sylvia
    Corthorn of the Superior Court of Justice, dated February 10, 2021, with
    reasons reported at 2021 ONSC 1069.

REASONS FOR DECISION

[1]

This is an appeal from the dismissal of an
    action as frivolous and vexatious pursuant to r. 2.1.01 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194
.
    The underlying proposed class action and constitutional challenge makes multiple
    assertions, including that COVID-19 is a multi-lateral global conspiracy to,
    among other things, promote sterilization programs and manipulate the human genome.
    Billions, if not trillions, of dollars are sought from domestic governments as
    well as foreign entities.

[2]

The dismissal of this action reflects an
    exercise of discretion and therefore is entitled to appellate deference. The
    motion judge clearly, and in some detail, explained why she concluded that this
    case is frivolous and vexatious, so much so that it rises to the level of the
    clearest of cases in which to apply r. 2.1.01.

[3]

The motion judge did not err in deciding the
    matter without written submissions from the appellant. These motions are
    intended to be made in a summary manner and may, in the courts discretion, be
    made without written submissions: see
Ahmed v. Ontario (Attorney General)
, 2021 ONCA 427, at para. 7.
A fair
    reading of the motion judges reasons, particularly paras. 34-36, demonstrates
    consistency with the procedural requirements of the governing rule.

[4]

Nor did the motion judge misdirect herself on
    the law. To the contrary, her legal analysis shows her command of the operative
    legal principles. Nor did the motion judge make any factual errors. It was open
    to the motion judge to reach the conclusion she did and characterize matters as
    she did.

[5]

We see no basis to interfere with her exercise
    of discretion.

[6]

The appeal is dismissed.

[7]

Costs will be paid by the appellant to the respondent
    Attorneys General in the total amount of $250.00, all inclusive, to be split
    between those parties.

Fairburn
    A.C.J.O.

David
    M. Paciocco J.A.

L.
    Sossin J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Alexander (Re), 2022 ONCA 237

DATE: 20220321

DOCKET: C69801

Rouleau, Huscroft and Trotter
    JJ.A.

IN THE MATTER OF: Michael B. Alexander

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andrew Menchynski, for the appellant

Dena Bonnet, for the Attorney General

Julia L. Lefebvre, for Waypoint Centre
    for Mental Health Care

Heard: March 11, 2022 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated April 7, 2021, with reasons dated April 23, 2021.

REASONS
    FOR DECISION

(1)

Introduction

[1]

On January 31, 2020, the appellant was found not
    criminally responsible on account of mental disorder (NCRMD) in relation to the
    offences of threatening death and robbery. On July 13, 2020, the Ontario Review
    Board (the Board) ordered that the appellant be detained at the Waypoint
    Centre for Mental Health (Waypoint), a secure facility.
[1]

[2]

The appellant appeared before the Board on March
    31, 2021 for his annual review under s. 672.81(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The issues before the Board were whether the appellant
    continued to pose a significant threat to the safety of the public and, if so,
    what was the necessary and appropriate disposition. All parties agreed that the
    appellant was a significant threat to the safety of the public. They also
    agreed that he should be transferred to the Secure Forensic Unit at Providence
    Care in Kingston (Providence Care), a less secure facility than Waypoint.

[3]

The Board found that the appellant was a
    significant threat to the safety of the public, but rejected the joint
    submission for a transfer from Waypoint to Providence Care.

[4]

The appellant appeals the placement decision
    only. He submits that the Boards decision was unreasonable. Moreover, he
    contends that the hearing before the Board was procedurally unfair because the
    Board failed to provide adequate notice that it was considering the rejection of
    the joint submission.

[5]

The respondents submit that there was no
    unfairness in the manner in which the Board handled the joint submission. On
    the transfer issue, both respondents support the Boards decision despite the
    fact that it is contrary to the joint submission they made at the hearing. The
    Crown grounds this position on appellate deference to the Boards decision; Waypoint
    also relies on deference, but also alludes to fresh evidence that is not before
    us.

[6]

We conclude that the manner in which the Board
    dealt with the joint submission was less than ideal; however, but it did not
    amount to procedural unfairness. Moreover, the Boards decision was a
    reasonable exercise of its discretion.

(2)

Background

[7]

The appellant is 41 years old. In May of 2019,
    he received a conditional discharge for uttering a death threat. He was placed
    on probation for 12 months. The following month, he attended a bank in downtown
    Toronto. He went into one of the employees offices and started yelling and screaming
    in an incoherent manner. When asked to leave, he threatened to cut off the
    employees head and put it in a potato sack he was carrying. He eventually left
    the bank. He was subsequently arrested a month later, but released on bail.

[8]

In September of 2019, the appellant grabbed a
    purse from a restaurant patio table. The victim attempted to retrieve her purse,
    and in the ensuing struggle, her wallet dropped to the ground. The appellant
    ran off with the wallet. The victim caught up to him. With the assistance of
    bystanders, the wallet was recovered. A passing police car was flagged down and
    the appellant was arrested.

[9]

The appellants current diagnoses are:
    schizoaffective disorder, bipolar type; substance use disorder; and antisocial
    personality traits. Prior to these events, the appellant had admissions to
    psychiatric facilities. At the time of his arrest, the appellant was
    essentially homeless, supported by the Ontario Disability Support Program.

[10]

In the months between his arrest and his NCRMD
    finding, the appellant was placed at CAMH. However, because of the inability of
    staff to control him, there were a number of admissions to Waypoint, where the appellant
    spent much of his time in seclusion.

[11]

In the days leading up to the hearing, the
    appellant engaged in erratic behaviour. He threatened suicide and attempted to
    suffocate himself. His treatment team believed this was an attention-getting
    reaction to the Hospital Report and his anxiety about his upcoming ORB hearing.

(3)

The Hearing

[12]

At the outset of the hearing, a representative
    for Waypoint advised the Board that the hospital recommended the appellants
    transfer to Providence Care. The appellant supported this recommendation. The
    Crown indicated that it would state its position after hearing the evidence.

[13]

When the parties set out their positions, they
    were aware that Providence Care objected to the proposed transfer. Dr. Tariq
    Hassan, Clinical Director of Forensic Mental Health at Providence Care, had
    sent a letter setting out its reasons for its objection.
[2]
Having reviewed the Hospital
    Report, Dr. Hassan expressed concerns about the appellants significant
    periods of very acute presentations of unwell behaviour and serious threats of
    violence. He provided other reasons, including the relative recency of the
    appellants clinical progress. Being open to the possibility of a future
    transfer, Dr. Hassan said, [t]his is the rare occasion where I would disagree
    with my colleagues at Waypoint and do not accept to have this gentleman
    transferred to Providence Care at this time. The letter was also before the Board
    and entered as an exhibit. It became a focal point at the hearing.

[14]

The Board heard the evidence of one witness, Dr.
    J. Van Impe, the appellants attending psychiatrist. Dr. Van Impe adopted the
    contents of the Hospital Report and provided the opinion that the appellant
    remains a significant risk to the safety of the public. He referred to the
    appellants periods of extreme agitation, extreme threats of violence, and the
    requirement for seclusion.

[15]

Dr. Van Impe testified that the unanimous
    opinion of the treatment team was that the appellant could be managed at
    Providence Care. However, he said the decision was a difficult one, a
    guarded recommendation, and not an easy decision. Dr. Van Impe testified
    that, if the appellant maintained compliance with his medication, as he had
    over the previous five months, he would be manageable in the less-secure
    setting of Providence Care.

[16]

Responding to the objection of Providence Care,
    Dr. Van Impe said, [t]heir concerns are valid. This isnt a cut and
    dryrecommendation. However, pointing to the appellants intense dislike of
    Waypoint, Dr. Van Impe believed that fear of being returned to Waypoint would
    act as a positive incentive at Providence Care.

[17]

At the conclusion of the evidence, Waypoint
    maintained its recommendation for a transfer, but with conditions designed to
    address the appellants risk factors and the possibility of elopement. The
    Crown said it is cautiously in support of the cautious position by the
    hospital.

(4)

The Boards Decision

[18]

The Board accepted the joint submission that the
    appellant was a significant threat to the safety of the public. It declined to accede
    to the joint submission concerning the transfer to Providence Care. As the
    Board said, at para. 29:

The Board appreciates the fact that the
    parties put forward a joint submission that Mr. Alexander be transferred to a
    less secure facility. The panel does not reject this joint submission lightly.
    As the Court of Appeal stated in
Hassan (Re)
, [2011] O.J. No. 3800 at
    para. 24, the Board ought to tread cautiously before making an order that the
    restricts the accuseds liberty beyond that which the hospital and the Crown
    thinks necessary. However, the court went on to say this at para. 25:

However, the Board does not necessarily err
    because it declines to follow a hospitals or Crowns recommendation.
    Automatically adhering to the position of a hospital or Crown would mean
    abdicating its own role. A review board is composed of medical and legal
    experts with specialized knowledge and experience in mental health and in risk
    assessment and management. Parliament has vested these boards with authority to
    make their own independent and often difficult determinations after weighing
    the package of factors in s. 672.54 of the
Code
.

[19]

As discussed below, the Board outlined the
    factors that caused it to give effect to Dr. Hassans objections to the
    proposed transfer to Waypoint.

(5)

Discussion

[20]

It is well-established in this courts
    jurisprudence that the Ontario Review Board is not bound by joint submissions.
    However, the Board owes a duty of procedural fairness to those individuals over
    which it exercises jurisdiction, which includes a duty to give notice when it
    considers rejecting a joint submission. Notice gives the parties an opportunity
    to address the Boards concerns, by adducing (further) evidence, making
    responsive submissions, or both:
Re Osawe
, 2015 ONCA 280, 125 O.R.
    (3d) 428, at paras. 33, 42-43;
Re Kachkar
, 2014 ONCA 250, 119 O.R.
    (3d) 641, at paras. 42-44; and
Re Elman
, 2021 ONCA 783, 407 C.C.C.
    (3d) 481, at paras. 31-32.

[21]

Notice may take different forms. It may be
    direct or indirect. Notice may be given by Board members asking questions that
    are significantly probing about the core elements of the joint submission:
    see
Re Benjamin
, 2016 ONCA 118, at para. 22. See also
Osawe
,
    at para. 22 and
Elman
, at paras. 43-44. Whether questioning is a
    sufficient substitute for explicit notice involves a contextual inquiry:
Re
    Nguyen
, 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 20.

[22]

There was clearly a joint submission concerning
    the transfer request. As noted in para. 18 above, the Board acknowledged this
    reality. The Crown places significance on the fact that the joint submission was
    only reached at the end of the evidentiary phase of the hearing. But this did
    not detract from the essential nature of a joint submission. A joint submission
    may be formed at any time up until the decision-maker commences deliberations.

[23]

There was no explicit mention by any Board
    member that the joint submission might not be accepted. It would have been
    preferrable if this had been done. This is a matter that should not be left to
    guesswork. However, the manner in which the hearing was conducted ought to have
    signalled that the requested transfer was not a done deal.

[24]

The letter of Dr. Hassan was before the Board
    and made an exhibit. The issue was squarely in play. The questioning of Dr. Van
    Impe by Justice Lipson revealed some concern with the proposed transfer in the
    face of Dr. Hassans resistance.

[25]

The Crown relies on the questioning of the
    Alternative Chairperson as notice that the joint proposal was on infirm ground.
    In the lead up to a question concerning the possibility of moving the appellant
    to a less secure setting within Waypoint, he made the following parenthetical
    comment  I have no idea where Im going as far as a decision let alone my
    colleagues. Later, he commented that, Im trying to come to grips with this
    decision.

[26]

It would have been preferrable had the Board
    advised counsel of its concern during the submissions stage of the hearing. But
    there were no questions of counsel. Nonetheless, the aspects of the hearing
    mentioned in the preceding paragraphs collectively provided adequate notice
    that the joint submission might not be accepted. There was no procedural
    unfairness.

[27]

We dismiss this ground of appeal.

[28]

The appellant submits that the Boards decision
    to refuse the transfer was unreasonable. He submits that the Board should not
    have given effect to Dr. Hassans objections because they reflected more of a
    concern about the appellant being a nuisance in the institution. He submits
    that the Board could have approved the transfer along with an appropriate
    envelope of conditions to assuage Dr. Hassans concerns by giving Providence
    Care the proper tools to manage the appellant.

[29]

Both respondents submit that the Boards refusal
    to order the appellants transfer was reasonable. As noted above, counsel for
    Waypoint alludes to more recent events that might justify the denial of the
    transfer. This was not a proper submission. If counsel wish to update the court
    about the progress or decompensation of an NCRMD detainee, the appropriate procedure
    is an application to introduce fresh evidence. That was not done in this case.
    In reaching our decision on this issue, we rely exclusively on the formal
    record, and nothing more.

[30]

Notwithstanding Mr. Menchynskis able
    submissions, our evaluation of the Boards reasons leads us to conclude that
    its decision was reasonable.

[31]

In reaching this conclusion, we must give the deference
    that is typically afforded to the Boards decisions on appeal. Moreover, the
    Board provided thorough reasons for giving effect to Dr. Hassans objection to
    the Hospitals proposal. We do not accept the appellants submissions that Providence
    Care resisted the transfer because the appellant was merely a nuisance and engaging
    in attention-seeking behavior. The problems he posed at the time were more
    serious. As the Board said, at paras. 25-28:

Since the time of Mr. Alexanders latest
    disposition in July 2020, Mr. Alexander required three periods of seclusion as
    a result of aggressive and bizarre behaviours and are described in great detail
    in the hospital report. He has been threatening to staff, sexually
    inappropriate towards female staff. He has also engaged in feces smearing when
    frustrated and angry. There were incidents when he was kicking and punching his
    door and on one occasion, he broke the fire sprinkler in his room causing the
    room to flood. It should also be said that Mr. Alexander did not physically
    assault any staff or co-patients during this review period.

The evidence is that Mr. Alexander has
    demonstrated significant improvement since December 2020 after being started on
    Abilify Maintena, an injectable antipsychotic medication. To his credit, Mr.
    Alexander achieved the most privileged security level available in early
    January 2021. He has participated in an anger management program and cognitive
    behavioural therapy. He sought out counselling with a psychologist and a
    substance abuse counsellor. He was a ward worker on his unit. His mental status
    has improved, and obvious psychotic symptoms have been minimal. In the opinion
    of his treatment team, Mr. Alexander is now ready for a transfer to a less
    secure facility.

Unfortunately, Mr. Alexanders positive
    trajectory was interrupted by the very concerning events of March 22, 2021 when
    he engaged in acts of self-harm, including trying to suffocate himself with a
    laundry bag, submerging his head into a toilet and wrapping a safe gown
    around his head. He required 4-point restraints and placement in a padded room
    for his own safety. Dr. Van Impe described these attempts at self-harm as an
    impulsive reaction to reading what Mr. Alexander viewed as unfavourable
    comments in the hospital report in combination with his overall anxiety about
    his upcoming Board hearing.

Mr. Alexanders progress is relatively recent
    and his self-harming behaviour on March 22, 2021 raises significant concerns
    about his current mental status.
The Board agrees with the opinion expressed
    by Dr. Hassan that while Mr. Alexander has made some gains in recent months,
    his recovery is still in its infancy. The Board notes that Mr. Alexander has
    yet to reside on the least structured and highest privileged unit of Waypoint
.
    Upon a consideration of all the evidence, the Board is of the view that a
    further period of stabilization at Waypoint is necessary before Mr. Alexander
    can be transferred to and safely managed in a less secure hospital.
In
    arriving at this decision, the Board attached significant weight to the well
    supported and clearly stated reasons of Dr. Hassan in exhibit 3 explaining why
    he did not consider Mr. Alexander to be an appropriate candidate for transfer
    to Providence
. [Emphasis added].

[32]

In the light of these cogent reasons, based on a
    proper appreciation of the evidence, it cannot be said that the Boards decision
    was unreasonable.

Disposition

[33]

The appeal is dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

Gary Trotter J.A.

[1]
An appeal (C68650) from that disposition was launched but never
    reached the hearing stage. By way of a separate order, and on the consent of
    the parties, that appeal is dismissed as a moot appeal.

[2]
Pursuant to r. 13 of the Ontario Review Boards
Rules of
    Procedure
, when any party at a hearing requests that the accused should be
    transferred to another institution, that party shall provide notice to all
    other parties as well as the person in charge of the prospective receiving hospital.
    See the discussion about how this rule operates in practice in Michael Davies,
    Anita Szigeti, Meaghan McMahon and Jill R. Presser,
A Guide to Mental
    Disorder in the Canadian Criminal Justice System
(Toronto: LexisNexis
    Canada Inc., 2020), at pp. 230-232.


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
, chapter Y-1 of the
    Revised Statutes of Canada, 1985, provided that he or she is not in custody
    pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b) is guilty of an
    offence punishable on summary conviction.

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. D.S., 2022 ONCA 238

DATE: 20220323

DOCKET: C69680

Strathy C.J.O., Coroza and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.S.

Appellant

Jill Gamble, for the appellant

Mark Luimes, for the respondent

Heard: March 15, 2022 by video
    conference

On appeal from the conviction entered on
    April 13, 2021 by Justice Julia A. Morneau of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant  13 years old at the relevant
    time  was found guilty of sexually assaulting his seven-year-old half-sister,
    K.R.

[2]

The appellant and K.R. lived with their grandparents
    and their mother, J.S. While everyone lived in the same household, the
    appellant was cared for by his grandparents; K.R. primarily by J.S.

[3]

The appellant pleaded not guilty. At trial, K.R.s
    police statement was admitted pursuant to s. 715.1 of the
Criminal Code
,
    and she was cross-examined. J.S. testified on behalf of the Crown. An agreed
    statement of fact from the grandparents was also tendered as part of the Crown
    case. No defence evidence was presented. The appellants counsel argued that
    the Crown had not satisfied its burden. The trial judge disagreed, finding that
    the Crown had established guilt beyond a reasonable doubt.

[4]

On the date in question, J.S. found the appellant
    and K.R. together in a room, under a blanket, giggling. She testified that,
    upon entering, she could see the top of K.R.s head. The appellant and K.R.
    were both shirtless. The appellants shorts were undone. J.S. asked the
    appellant to leave the room so she could help K.R. get ready for bed. K.R. then
    told her what the appellant had just done. J.S. then brought K.R. and the
    appellant to speak with their grandparents. J.S. told K.R. to disclose to her
    grandparents what she had just told her, which she did. The appellant denied it.

[5]

In the police statement, K.R. described the
    appellants conduct by pointing to her crotch area and indicating that the
    appellant touched himself there. She further testified that the appellant
    tried to  make [her] lick  his nuts; that he pee[d]  in [her] mouth;
    that he got his nuts out; and that he pulled down his zipper.

[6]

K.R. has been diagnosed with FASD and ADHD. She
    has a speech impediment, and functions at approximately two grade levels behind
    her peers. Her vocabulary is limited, and during her testimony she had obvious
    difficulties describing her, and the appellants, body parts.

[7]

The appellant appeals against conviction,
    raising these two grounds: 1) That the trial judges reasons are insufficient,
    and 2) that the verdict is unreasonable.

[8]

The trial judges reasons, while brief,
    adequately explain her decision and how she arrived at it. She addressed K.R.s
    limitations, given her age and disabilities, and found that, despite them, she
    could adequately describe what the appellant did to her, from which she did not
    resile. The trial judge acknowledged that K.R.s testimony was somewhat
    confusing but, after viewing her evidence through the proper lens, said this:

KRs evidence in cross examination was a bit
    confusing. However, when I consider KRs limitations, her account from the
    police interview, and her answers in cross examination that she did not see
    peeing in the mouth on a video game, and when Ms. Gamble said to KR that her
    brother [the appellant] did not pee in her mouth, KR understood that question
    and told Ms. Gamble that he did.

[9]

Apart from accepting K.R.s evidence, the trial
    judge also addressed the arguments of the appellants trial counsel. Of note,
    she addressed the submission that there was not enough time for the appellant
    to do what K.R. alleged he did, writing that:

Ms. Gamble did
    point out that the time that elapsed between when JS said she went into the
    house to get KR ready for bed after KR entered the home was 5 minutes.
    That was JSs evidence. Ms. Gamble argues that 5 minutes would be
    insufficient time for this event to unfold.

When witnesses offer time estimates it is
    usually without the benefit of having had a stopwatch in hand and there is no
    suggestion JS had. That afternoon the family had been outside on the deck. KR
    had been running through the backyard sprinkler. [The appellant] was inside the
    house. JS was visiting with her parents, lived at the home at this time and did
    enter the home to help get KR ready for bed. There was nothing unusual going on
    that would have required JS to measure the time. Her estimate of 5 minutes
    was just that.

[10]

The reasons are sufficient. While the trial
    judge does not expressly say that K.R. was reliable, when the reasons are read
    as a whole, it is clear that she found K.R. was. Recognizing that a trial judge
    does not have to resolve every inconsistency in the evidence, or detail
    findings on every controverted fact, these reasons explain the path to
    conviction and allow for appellate review:
R. v. R.E.M.
, 2008 SCC 51,
    [2008] 3 S.C.R. 3, at paras. 20, 24, 30, 35, 53, 55-56.

[11]

Lastly, this verdict is not unreasonable. Such a
    result is rare and only appropriate when the verdict is one that no properly
    instructed trier of fact, acting judicially, could reasonably have rendered:
R.
    v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37;
R.
    v. Yebes
, [1987] 2 S.C.R. 168, at p. 185. This onerous threshold has not
    been met.

[12]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S.
    Coroza J.A.

J.
    George J.A.