COURT OF APPEAL FOR ONTARIO CITATION: R. v. A.B., 2026 ONCA 361[1] DATE: 20260522 DOCKET: COA-23-CR-1115 Thorburn, Pomerance and Rahman JJ.A. BETWEEN His Majesty the King Respondent and A.B. Appellant Marianne Salih and Sara Little, for the appellant Elena Middelkamp and Julia Cappellacci, for the respondent Heard: February 19, 2026 On appeal from the convictions entered by Justice Lawrence Feldman of the Ontario Court of Justice, on August 26, 2021, and from the dangerous offender designation and sentence imposed by Justice Susan M. Chapman of the Ontario Court of Justice, on May 4, 2023. Pomerance J.A.: I. OVERVIEW [ 1 ] The appellant was convicted of several offences arising from human trafficking and assault of his intimate partner, the complainant. Prior to trial, the complainant gave various statements to police in which she described forced trafficking activity, as well as assaultive and threatening conduct on the part of the appellant. At trial, the complainant was hostile to the prosecution. She recanted her allegations, claiming them to be untrue. The trial judge admitted the complainant’s prior statements for their truth, applying the principled exception to the hearsay rule. In his final reasons for judgment, he rejected the complainant’s trial testimony, but accepted, as true, her statements to the police. On that basis, he found the appellant guilty of several human trafficking offences, criminal harassment, and failure to comply with probation. [ 2 ] Following the convictions, the Crown brought an application to have the appellant designated a dangerous offender. The sentencing judge (a different judge than the trial judge) designated the appellant as a dangerous offender. She sentenced the appellant to ten years in custody followed by a ten-year Long-Term Supervision Order. [ 3 ] The appellant challenges his convictions and his designation as a dangerous offender. He argues that the trial judge erred by engaging in circular reasoning, improperly relying on demeanour evidence, and failing to apply the W.(D.) analysis. As for his designation as a dangerous offender, he submits that the sentencing judge erred in her approach to the requirement of intractability. [ 4 ] I am not persuaded that either the trial judge or the sentencing judge erred in their approach. I will explain why in the reasons that follow. II. BACKGROUND AND EVIDENCE: THE PREDICATE OFFENCES [ 5 ] In November 2018, the appellant and the complainant, J.J., were in a relationship and living in J.J.’s parents’ home. According to the complainant’s statements to police, the appellant was abusive. He hit and choked her and generally controlled her through violence. Upon learning of this abuse, J.J.’s mother kicked them both out of her home. J.J. reported the appellant to the police but still decided to leave her parents’ home with him. [ 6 ] The appellant was not working and J.J. felt obligated to provide for him. She had previously worked in the sex trade, and the appellant encouraged her to return to that work. He also suggested they get other girls to work to earn more money, but J.J. refused. J.J. was not happy providing sexual services but felt she had no choice – she felt guilty for reporting the appellant to the police and she felt she was controlled by him. [ 7 ] The appellant controlled J.J.’s phone and access to her car. He helped her advertise her services and sometimes drove her to her jobs. Although J.J. typically communicated with her clients, at times the appellant did so as well. He controlled who she could have sex with, what she could do with her clients and where she could do it. He took all the money she earned. The appellant enforced compliance with his demands through physical violence and threats thereof. [ 8 ] On January 5, 2019, J.J. gave a statement to the police in which she detailed a history of assaults that she suffered at the hands of the appellant. Charges were laid and the appellant pleaded guilty to four counts of assault and one count of breach of recognizance. He was sentenced to approximately five months’ imprisonment and was ordered not to have any contact with J.J. [ 9 ] While in prison, the appellant called J.J. on various occasions. She told police that he threatened her and told her that he had her under surveillance. J.J. told police that she feared what would happen once the appellant was released. She wanted to create a record in the event something happened to her. [ 10 ] On May 15 and June 4, 2019, she gave two more statements to the police. She told the police that the appellant controlled her and made her engage in sexual services. On the strength of these statements, the appellant was charged with human trafficking, receiving a material benefit from human trafficking, procuring/exercising control, receiving a material benefit from the provision of sexual services, uttering threats, causing unnecessary suffering to an animal, two counts of criminal harassment, and four counts of failure to comply with recognizance. [ 11 ] At trial, J.J. recanted the allegations that she made in her statements to police, claiming that the appellant exercised no control over her and that there was no abuse. She claimed that police pressure, the effects of drugs and memory loss from a concussion caused her to provide false statements. She claimed that she would commit suicide if the prosecution was not halted, and that she wanted to resume her relationship with the appellant. [ 12 ] The Crown was granted leave to cross-examine J.J. under s. 9(2) and, subsequently, s. 9(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5. The Crown then applied to have the police statements admitted for their truth, pursuant to the principled approach to the hearsay rule. The trial judge found that the threshold test of admissibility was satisfied such that the statements could be admitted for their truth. The hearsay ruling is not challenged on appeal. [ 13 ] In his reasons for judgment, the trial judge ruled that J.J.’s in-court testimony was incredible and unreliable. He found that her in-court testimony was self-serving, implausible, absurd, and unworthy of belief. He found that she recanted at trial because of past abuse by the appellant, and pressure exerted by the appellant upon her from jail. The trial judge noted that J.J. had sent an email to the Crown, begging the Crown to halt the prosecution and promising to lie in court if it continued. [ 14 ] By way of contrast, the trial judge found that J.J.’s police statements should be accepted as a truthful account. Considering the content of her out-of-court statements, as well as her demeanour, the trial judge found J.J.’s police statements to be articulate, coherent, detailed and sincere. He rejected defence arguments that he should not rely on the statements due to concerns about J.J.’s memory and an alleged motive to lie, borne out of jealousy over the appellant’s new girlfriend. [ 15 ] Relying on J.J.’s out-of-court statements, the trial judge convicted the appellant on all counts, except for a single count of uttering threats[2]. III. BACKGROUND AND EVIDENCE: THE DANGEROUS OFFENDER HEARING [ 16 ] After the appellant was convicted, the Crown sought to have him declared a dangerous offender pursuant to ss. 753(1) (a)(i) or (ii) of the Criminal Code , R.S.C., 1985, c. C-46. [ 17 ] In support of its application, the Crown filed a report prepared by Dr. Lisa Ramshaw, a forensic psychiatrist who assessed the appellant pursuant to s. 752.1 of the Code. The Crown also called Dr. Ramshaw as a witness on the application. Dr. Ramshaw’s report is partially reliant on interviews conducted with the appellant and some of his prior intimate partners, as well as his mother. Dr. Ramshaw diagnosed the appellant with, among other things, antisocial personality disorder and substance use disorder. She concluded that the appellant had a “moderately-high risk” of recidivism, a conclusion informed by the standard statistical risk assessment tools[3]. In recommending how to manage the appellant’s risk, Dr. Ramshaw recognized that notwithstanding that the appellant had “a long history of poor supervision response and avoidance of treatment programs”, the appellant would “likely” be manageable in the community “with significant treatment prior to release, with ongoing structure, supervision, and treatment interventions”. [ 18 ] The sentencing judge considered Dr. Ramshaw’s report, reviewed the predicate offences and the proceedings at trial, the victim impact on J.J., as well as the appellant’s personal circumstances and lengthy criminal record in making her determination. She found that the Crown had proven beyond a reasonable doubt that the appellant met the standard for a dangerous offender set out in s. 753(1). The predicate offences, including human trafficking, clearly met the definition of a “serious personal injury offence”. She was further satisfied that the Crown had proven both that the appellant had engaged in a pattern of repetitive behaviour under s. 753(1)(a)(i) and persistent aggressive behaviour under s. 753(1)(a)(ii). The sentencing judge noted that despite numerous court orders made to protect his intimate partners over the years, the appellant “flagrantly” breached them. She found that the appellant posed a high likelihood of harmful recidivism, and that the appellant’s behaviour was intractable. She concluded that “[i]t has been established beyond a reasonable doubt that there is a high likelihood of harmful recidivism and that [the appellant’s] violent conduct is deep seated and not amenable to treatment”. Accordingly, the sentencing judge designated the appellant a dangerous offender. [ 19 ] The appellant was sentenced to ten years (less time served) followed by a ten-year Long-Term Supervision Order. The sentencing judge found that this was “the least onerous sentence that I can impose on [the appellant] considering the serious threat he poses to society, in particular intimate partners, and what I find to be his poor prospects for rehabilitation”. IV. THE CONVICTION APPEAL [ 20 ] The appellant challenges his conviction on three grounds: (1) The trial judge engaged in circular reasoning; (2) The trial judge placed improper weight on the complainant’s demeanour in the recorded out-of-court statements; and (3) The trial judge failed to apply W.(D.) to the exculpatory portion of the complainant’s testimony. [ 21 ] I will deal with each of these in turn. NO CIRCULAR REASONING [ 22 ] The appellant submits that the trial judge engaged in circular reasoning when he accepted the truth of the complainant’s out-of-court statements. The trial judge found that the complainant spoke truthfully to police because the appellant threatened and harassed her when he called her from the jail, causing her to feel the need for protection. Yet, this presupposed the truth of the complainant’s assertion that the appellant threatened and harassed her from jail. On this basis, the appellant argues that the reasoning was circular. The trial judge found the assertions in statements to be true by presuming the truth of the assertions in the statements. [ 23 ] I do not agree with this characterization. The trial judge did not base his belief in the statements solely on their content. He considered a host of factors. [ 24 ] There was no question that the appellant had been abusive toward the complainant in the past. The record revealed that he had pleaded guilty to a series of earlier assaults committed against the complainant. Second, institutional records confirmed that the appellant made several calls to the complainant from jail during a time when he was bound by a non-communication order. Third, the complainant told police that she wanted protection, and that she wanted to create a record in case something happened to her. [ 25 ] The trial judge’s reasoning was not circular, but linear. He based his conclusions on the circumstances of the statements, the content of the statements, extrinsic evidence of the appellant’s prior assaultive behaviour, and confirmation that the appellant had called the complainant from the jail. This reasoning does not disclose any error. NO ERROR REGARDING DEMEANOUR EVIDENCE [ 26 ] The second allegation is that the trial judge erred by improperly relying upon the complainant’s demeanour in her videotaped statements to police. [ 27 ] It is well known that demeanour can be misleading and ought not to be the sole or primary basis on which to assess credibility and reliability: R. v. Hemsworth, 2016 ONCA 85 , 334 C.C.C. (3d) 534, at paras. 44-45 . People may react to the courtroom in a variety of different ways. A fact finder must not base findings of credibility on generalized assumptions about how an honest or dishonest witness is likely to appear or behave. [ 28 ] It does not follow, however, that consideration of demeanour must be rigorously excised from the deliberation process. It is arguably impossible to do so. Credibility assessment is a holistic exercise, based on a “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”: R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 20 . Demeanour is one factor, albeit one of many, that can inform findings of credibility: R. v. N.S. 2012 SCC 72 , [2012] 3 S.C.R. 726, at paras. 25-26 . [ 29 ] Moreover, the principled exception to the hearsay rule, pursuant to which the statements were admitted, recognizes the inherent value of seeing a person speak. The ability of a trier of fact to observe demeanour contributes to the procedural reliability of an out-of-court statement. The fact that a statement has been recorded on video and is available for viewing by the trier of fact, can contribute to “a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement”: R. v. Bradshaw, 2017 SCC 35 , [2017] 1 S.C.R. 865 at paras. 20 , 28 and 109; R. v. B. (K.G.), 1993 CanLII 116 (SCC) , [1993] 1 S.C.R. 740, at pp. 792-96. [ 30 ] The trial judge did not place undue emphasis on demeanour when he accepted the truth of the out-of-court statements. The trial judge observed that the complainant spoke “openly for over two hours”, and that she gave “lengthy, substantive answers without hesitation”, without a “hint of incoherence”. The trial judge noted that she had a motive to speak to police, given the history of physical and emotional abuse at the hands of the appellant. He gave express consideration to other potential motives, such as jealousy over another woman, but found that those suggestions did not raise a reasonable doubt about the truth of the allegations. He concluded: “when I consider the content of her statements in the context of the allegations, as well as her demeanor as seen in the videotapes, together with her motivation, there is no other conclusion” (emphasis added). [ 31 ] This ground of appeal must fail. NO W.(D.) ERROR [ 32 ] Finally, the appellant argues that the trial judge erred in failing to apply the W.(D.)[4] analysis to the exculpatory features of the complainant’s trial testimony and some of her emails made exhibits at trial. It is argued that the trial judge was required to assess whether the exculpatory portions of the complainant’s evidence raised a reasonable doubt as to the appellant’s guilt. [ 33 ] It is well settled that the W.(D.) analysis applies to any and all exculpatory evidence: R. v. Hoffman, 2021 ONCA 781 , 408 C.C.C. (3d) 4, at para. 41 ; R. v. Panovski, 2021 ONCA 905 , 408 C.C.C. (3d) 205, at para. 82 ; R. v. Fitzpatrick, 2026 ONCA 262 , at para. 86 . The question is not merely whether the trier of fact accepts the evidence, but rather, whether, even if it is not accepted, the evidence is capable of raising a reasonable doubt. [ 34 ] The trial judge did not expressly apply the W.(D.)analysis to the complainant’s trial testimony, but he did the functional equivalent. It was clear from his reasons that the complainant’s testimony was not capable of raising a reasonable doubt about the appellant’s guilt. This is because the trial judge rejected the complainant’s trial account as a dishonest concoction; finding it to be “implausible, and at times, absurd”. He found that her trial testimony reflected an attempt to “be manipulative”. He noted that the complainant told Crown counsel in an email that she would lie in court unless the prosecution of the appellant was stopped. The reasons leave little doubt that the trial judge found the complainant’s evidence at trial to be dishonest and deliberately deceitful. [ 35 ] Against that backdrop, the exculpatory evidence could not realistically raise a reasonable doubt. [ 36 ] The rule in W.(D.)gives operational expression to the presumption of innocence, and the burden and standard of proof in criminal cases. A reasonable doubt can be based on evidence or the absence of evidence. It can be based on evidence that, while not accepted, has not been completely rejected. This is because various cognitive states of belief exist between complete acceptance of evidence as true, on the one hand, and complete rejection of evidence as untrue, on the other: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA) , 45 C.C.C. (2d) 546 (Ont. C.A.), at p. 557. [ 37 ] A trier of fact might not be certain that exculpatory evidence is true yet might not be convinced that it is untrue. The trier might think the person is telling the truth but not be sure. The trier might think the person is lying but not be sure. Or the trier might simply not be able to determine whether the person is telling the truth or telling a lie. In each of these instances, the evidence, while not accepted, has not been definitively rejected. The evidence has a continuing, residual value. It remains part of the evidentiary calculus and might be capable of raising a reasonable doubt. [ 38 ] Far different is the situation in which the trier of fact has positively concluded that the exculpatory evidence is untrue. Where, as here, there is a categorical determination that the complainant’s trial testimony has been concocted, it cannot rationally maintain any residual value. A doubt based on falsified evidence cannot be a reasonable doubt. [ 39 ] W.(D.) does not require that a trial judge offer a “magic incantation” or recital of its formula, nor does it require a trial judge to set out the W.(D.) approach with respect to each essential element R. v. Wadforth, 2009 ONCA 716 , 247 C.C.C. (3d) 466, at para. 51 ; R. v. E.D., 2020 ONCA 633 , at para. 14 , leave to appeal refused [2020] S.C.C.A. No. 474; see also R. v. T.D., 2024 ONCA 860 , at para. 37 . What matters is that the trial judge properly applies the presumption of innocence and places the burden of proof on the prosecution throughout. Reading the reasons as a whole, that requirement was satisfied in this case. V. THE SENTENCE APPEAL [ 40 ] The appellant challenges his designation as a dangerous offender, specifically focusing on the sentencing judge’s intractability analysis. He argues that the sentencing judge committed two errors. First, he says that she erred in concluding that the appellant’s conduct was intractable at the designation stage by adopting an overly restrictive definition of treatment. Second, he says that she erred in finding that the appellant’s conduct was intractable in the face of evidence to the contrary. [ 41 ] On both points, the appellant relies on the evidence of Dr. Ramshaw. The appellant says that, while Dr. Ramshaw offered a grim prognosis for the appellant’s treatment, she testified that the appellant’s risk of violent recidivism could be manageable in the community after one year of structured programming. Similarly, Dr. Ramshaw’s report opined that the appellant’s risk of violent recidivism “would likely be manageable in the community” with significant treatment prior to release, and with “ongoing structure, supervision and treatment interventions”. The appellant submits that, in light of this evidence, the sentencing judge could not find that the requirement of intractability had been met. [ 42 ] The Crown argues that it was amply open to the sentencing judge to find that the appellant was a dangerous offender. The Crown says that the sentencing judge committed no error in law, and her finding on intractability was reasonable and supported by the evidence. STANDARD OF REVIEW [ 43 ] Where the appeal is from a dangerous offender designation, the standard of review is “somewhat more robust” than in “regular” sentencing appeals, yet it is not a hearing de novo: R. v. Boutilier, 2017 SCC 64 , [2017] 2 S.C.R. 936, at para. 81 ; R. v. Sipos, 2014 SCC 47 , [2014] 2 S.C.R. 423, at para. 26 . Absent a material error of law, a dangerous offender designation is a question of fact, and the role of the appellate court is to determine whether the designation was reasonable: Boutilier, at para. 85 . In sum, errors of law are reviewed on a correctness standard, and errors of fact are reviewed on a reasonableness standard: Boutilier, at para. 81 ; R. v. Ahmed, 2023 ONCA 676 , 168 O.R. (3d) 522, at para. 99 . NO ERROR IN FINDING INTRACTABILITY [ 44 ] Dangerous offender proceedings are governed by s. 753 of the Code and have two stages: the designation stage and the penalty stage. Since the decision of the Supreme Court of Canada in Boutilier, it is settled that, at the designation stage, once the other criteria in s. 753(1) of the Code are met, the Crown must prove beyond a reasonable doubt that the offender’s conduct is intractable. This means that the offender is “unable to surmount” his violent behaviour: Boutilier, at para. 27 . This, in turn, involves an assessment of prospective risk, considering “all retrospective and prospective evidence relating to the continuing nature of this risk”: Boutilier, at para. 43 . [ 45 ] In this case, the sentencing judge set out a comprehensive analysis of the evidence that was before her on the dangerous offender hearing, including Dr. Ramshaw’s evidence. She applied the correct legal principles, and the legal definition of what it means for violent behaviour to be “intractable”. [ 46 ] The concept of intractability applies at both stages of the dangerous offender hearing, though it operates differently at each stage. As it was explained in Boutilierat para. 31 : As I will discuss below, the purposes of prospective evidence at the designation and sentencing stages are different. The designation stage is concerned with assessing the future threat posed by an offender. The penalty stage is concerned with imposing the appropriate sentence to manage the established threat. Though evidence may establish that an offender is unable to surmount his or her violent conduct, the sentencing judge must, at the penalty stage, turn his or her mind to whether the risk arising from the offender’s behaviour can be adequately managed outside of an indeterminate sentence. [ 47 ] Similarly, treatability is relevant at both stages, as explained in Boutilier,at para. 45 : The same prospective evidence of treatability plays a different role at the different stages of the judge’s decision-making process. At the designation stage, treatability informs the decision on the threat posed by an offender, whereas at the penalty stage, it helps determine the appropriate sentence to manage this threat. Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable. However, even where the treatment prospects are not compelling enough to affect the judge’s conclusion on dangerousness, they will still be relevant in choosing the sentence required to adequately protect the public. [Citations omitted.] [ 48 ] The sentencing judge properly applied this framework. At the designation stage, she concluded: I find that [the appellant] poses a substantial danger to the safety of the public. His personality disorders are such that they cannot be treated. At best, they can be managed. However, the record shows that the possibility of his being managed is based on certain contingencies which will be further elaborated upon in fashioning an appropriate sentence. It has been established beyond a reasonable doubt that there is a high likelihood of harmful recidivism and that [the appellant’s] violent conduct is deep seated and not amenable to treatment. He will be designated a dangerous offender. [ 49 ] The sentencing judge was entitled to accept all, part or none of Dr. Ramshaw’s opinion. Intractability is a legal, rather than a psychiatric conclusion. While Dr. Ramshaw opined that the appellant’s behaviour could potentially be managed in the community, this required that the appellant meaningfully engage in structured treatment on a sustained basis. Other evidence cast doubt on the likelihood of that happening, including the appellant’s criminal antecedents, his “long-standing pattern of violent recidivism in … intimate relationships”, his substance abuse disorder, his prior resistance to, and failure to complete treatment, his scores on psychometric tests indicating a significant risk of recidivism, and his psychopathic traits. The totality of these factors led the sentencing judge to conclude that the appellant posed a “substantial danger to the safety of the public”, and that the requirement of intractability, along with the other legal requirements for a finding of dangerousness, had been met. [ 50 ] In short, the sentencing judge considered Dr. Ramshaw’s evidence, but found that it did not detract from the other compelling indicia of intractability applicable at the designation stage. This finding was reasonable and does not call for appellate intervention. VI. DISPOSITION [ 51 ] For all of these reasons, I would dismiss the appeals against both conviction and sentence. Released: May 22, 2026 “J.A.T.” “R. Pomerance J.A.” “I agree. Thorburn J.A.” “I agree. M. Rahman J.A.” [1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code , R.S.C. 1985, c. C-46. [2] The animal cruelty count was previously dismissed, and the trial judge found that of the four failure to comply counts, two were redundant. [3] These included the Psychopathy Checklist Revised (PCL-R), Violence Risk Appraisal Guide (VRAG), Ontario Domestic Assault Risk Assessment (ODARA), and HCR20-V3. [4] R. v. W.(D)., 1991 CanLII 93 (SCC) , [1991] 1 S.C.R. 742.
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