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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20211108 DOCKET: M52911 (C69745)

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent (Responding Party)

and

C.S. Appellant (Applicant)

Counsel: 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 appellant’s 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 judge’s alleged failure to consider and/or appreciate the appellant’s 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 appellant’s statements to police were voluntary without considering and/or appreciating the effect of the appellant’s significant intellectual disability;

c) failing to take the appellant’s 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 appellant’s cognition and IQ. The appellant’s expert evidence was the only expert evidence proffered to address the appellant’s 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 appellant’s statements to police

[18] In support of the appellant’s voir dire to challenge the admissibility of the police statements, the appellant called a clinical and forensic psychologist to testify about the appellant’s 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 appellant’s intellectual functioning and its effect on his comprehension and social perception.

The expert’s examination in chief

[20] The expert testified that the appellant’s 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, I’m 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 doesn’t 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 that’s a rule that you don’t 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 don’t know that this is the case for [the appellant] but I didn’t 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 it’s possible that that assumption could be made, which tends to get them into trouble.

[24] She testified however, that she did not review the appellant’s 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 they’re already at floor levels, it just doesn’t 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]t’s 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 they’re protected to maintain the integrity of the tests and to maintain the safety of the public. So, there’s a reason why only psychologist[s] can purchase, administer, score, and interpret these tests.

[27] The appellant’s counsel objected to Crown counsel’s 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 appellant’s parents and used by the expert in the following exchange with the expert witness:

Q. [Y]ou’re relying upon these folks to give honest answers to your testing and if you’ve asked them things that maybe are a little bit incredulous, their responses, isn’t 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 there’s 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 I’m relying upon for this third test.

A. So, yes, that’s always a concern. There aren’t effort measures or measures of malingering for parents that I’m aware of.

A: [W]hat I’m assessing is his adaptive functioning and given that he’s 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, that’s their story and that’s 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 judge’s decision on voluntariness and assessment of the expert’s 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 appellant’s 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 appellant’s 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 appellant’s very low cognitive abilities.

[34] In his reasons for judgment, the trial judge assessed the appellant’s 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 appellant’s 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 appellant’s submission that the appellant’s intellectual disability reduced his moral culpability.

[37] The trial judge concluded that a reduction in sentence was not available because the appellant’s 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 expert’s opinion and by failing to take into consideration the appellant’s cognitive disability when determining the appellant’s 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 Crown’s onus to show the appellant’s 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 judge’s assessment of demeanour, and whether the trial judge failed to consider whether the appellant’s 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.”