



WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.S., 2020 ONCA 752

DATE: 20201127

DOCKET: C61147

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.S.

Appellant

Alexander Ostroff, for the appellant

Eric. W. Taylor, for the respondent

Heard: June 23, 2020 by video
    conference

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

Coroza J.A.:

A.

BACKGROUND

[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

B.

GROUNDS OF APPEAL

[9]

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

(i)

failing to give sufficient reasons on the sexual
    assault count;

(ii)

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

(iii)

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

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

(v)

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

[10]

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

[11]

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

C.

SUMMARY OF FACTS

[12]

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

(1)

The Living Arrangements

[13]

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

[14]

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

[15]

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

(2)

The Christmas Concert Incident of December 18,
    2006

[16]

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

[17]

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

(3)

The Incident of December 27, 2006

[18]

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

(4)

The Disclosure of January 2007

[19]

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

[20]

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

[21]

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

[22]

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

[23]

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

[24]

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

[25]

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

[26]

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

(5)

The School Records

[27]

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

D.

POSITIONS OF THE PARTIES AT TRIAL

[28]

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

[29]

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

[30]

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

[31]

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

E.

THE TRIAL JUDGES REASONS

[32]

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

[33]

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

[34]

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

[35]

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

·

the appellant had shown her a book of
    pornography;

·

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

·

she described the appellant licking her private
    parts; and

·

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

[36]

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

[37]

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

[38]

He addressed the inconsistency in the following
    way:

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

[39]

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

[40]

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

F.

DISCUSSION

[41]

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

[42]

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

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

[43]

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

[44]

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

[45]

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

[46]

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

[47]

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

·

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

·

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

[48]

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

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

[49]

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

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

[50]

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

[51]

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

[52]

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

[53]

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

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

[54]

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

[55]

I would not give effect to this ground of
    appeal.

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

[56]

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

[57]

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

[58]

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

[59]

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

[60]

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

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

[Defence Counsel]: Yes.

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

[Defence Counsel]: Yes.

THE COURT: Okay.

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

[61]

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

[62]

I would reject this ground of appeal.

Ground #4: The Trial Judge Improperly Used Demeanour
    Evidence

[63]

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

[64]

I do not accept this submission.

[65]

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

[66]

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

[67]

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

[68]

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

[69]

I would reject this ground of appeal.

Ground #5: The Trial Judge Improperly took
    Judicial Notice

[70]

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

[71]

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

[72]

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

[73]

I disagree with these submissions.

[74]

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

[75]

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

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

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

[76]

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

[77]

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

[78]

I would dismiss this ground of appeal.

G.

APPEAL FROM INDETERMINATE SENTENCE

[79]

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

[80]

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

[81]

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

[82]

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

[83]

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

[84]

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

[85]

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

a)

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

b)

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

c)

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

[86]

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

[87]

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

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

[88]

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

[89]

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

[90]

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

[91]

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

[92]

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

[93]

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

[94]

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

[95]

I would dismiss the sentence appeal.

H.

DISPOSITION

[96]

For these reasons I would dismiss the appeals.

Released: D.W. November 27, 2020

S.
    Coroza J.A.

I
    agree. David Watt J.A.

I
    agree. Harvison Young J.A.





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



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



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


