



WARNING

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

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

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following offences;

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

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

(iii)     REPEALED: S.C. 2014, c. 25,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

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

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

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

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

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    the victim shall not be published in any document or broadcast or transmitted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

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

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

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

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

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

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.S., 2021 ONCA 802

DATE: 20211108

DOCKET: M52911 (C69745)

Thorburn J.A. (Motions
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

C.S.

Appellant (Applicant)

Megan Savard, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: November 5, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

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

[2]

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

[3]

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

[4]

The appellant appeals both his conviction and sentence.

[5]

On this motion, he seeks bail pending appeal.

THE TEST TO BE MET TO OBTAIN BAIL PENDING APPEAL

[6]

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

ANALYSIS OF THE ISSUE

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

a)

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

b)

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

c)

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

d)

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

[12]

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

The case against the appellant

[13]

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

[14]

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

[15]

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

[16]

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

[17]

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

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

[18]

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

[19]

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

The experts examination in chief

[20]

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

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

[21]

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

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



[22]

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

Cross-examination of the expert

[23]

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

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

[24]

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

[25]

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

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

[26]

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

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

[27]

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

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

[28]

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

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

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



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

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



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

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

A. Correct.

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

[29]

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

[30]

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

[31]

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

[32]

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

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

[33]

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

[34]

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

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

[35]

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

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

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

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

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

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

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

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

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

[36]

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

[37]

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

The issues the appellant intends to raise on appeal

[38]

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

[39]

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

[40]

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

[41]

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

[42]

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

CONCLUSION

[43]

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

[44]

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

J.A. Thorburn J.A.


