DATE: 20031105

DOCKET: C37410

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JOHN BRASON (Appellant)

BEFORE: DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL: Marie Henein and

Jennifer Gleitman

for the appellant

Riun Shandler

for the respondent

HEARD: October 23, 2003

ORALLY

RELEASED: October 23, 2003

On appeal from the conviction entered by Justice L. Baldwin of the Superior Court of Justice dated September 26, 2001 and the sentence imposed dated November 28, 2001.

E N D O R S E M E N T

[1] We required submissions from the Crown on only the main ground of appeal argued by counsel for the appellant.

[2] The complainant testified that she was viciously beaten by the appellant in his hotel room over about a two hour span. According to her evidence, he eventually allowed her to leave and she went directly to the nearby hospital, arriving there shortly after 4:00 a.m.

[3] The appellant testified that while he had been with the complainant earlier in the evening, he had nothing to do with her assault. The appellant and his former wife both testified that they were together at her farm at the time of the alleged assault.

[4] The Crown put the appellant’s telephone records into evidence. The records effectively placed the appellant in his hotel room shortly after 4:00 a.m. making a telephone call to his former wife. If the appellant made that call, he could not have been with his former wife at her farm and he must have been at the hotel room as alleged by the complainant.

[5] The appellant contends that the trial judge did not address the preconditions to admissibility of the telephone records under s. 30 of the Canada Evidence Act. Counsel contends that the trial judge did not consider whether these records were made in the usual and ordinary course of business. Counsel also argues that the trial judge failed to consider the reliability of the telephone records, both as it relates to the admissibility of the records and the weight to be given to the records if they were admissible.

[6] With respect to the argument based on s. 30 of the Canada Evidence Act, it would appear that trial counsel conceded that the preconditions to admissibility under s. 30 had been met and that the reliability of the telephone records was the only issue. The basis for counsel’s objection at trial is, however, somewhat unclear. We are satisfied that the evidence of Mr. Young does demonstrate that the records produced by him were made and kept in the usual and ordinary course of business.

[7] With respect to the arguments based on reliability, the fact that these were records made in the usual and ordinary course of business, provided a basis upon which the trial judge could find that the records were reliable. The trial judge specifically found that these records were reliable. While the evidence of Mr. Young may not have been helpful to the Crown in some respects, it does not render the trial judge’s finding that the records were reliable unreasonable, or provide any basis for the claim that the trial judge misapprehended the evidence in determining the reliability of the records.

[8] The appellant has also appealed sentence. He received a sentence of 3 years on top of the equivalent of 4 months pre-trial custody. In our view, this was a vicious, cowardly attack which warranted a lengthy sentence. We are entitled to interfere with the sentence imposed at trial only where there is an error in principle, or where the sentence is manifestly unreasonable. In our view, there is no error here and it cannot be said that the length of the sentence is clearly unreasonable.

[9] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”