DATE: 20051019

DOCKET: C41184

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. RAYMOND CAMACHO (Appellant)

BEFORE:

DOHERTY, BORINS and LAFORME JJ.A.

COUNSEL:

J. Trehearne

for the appellant

Feroza Bhabha

for the respondent

HEARD: October 17, 2005

RELEASED ORALLY: October 17, 2005

On appeal from the convictions entered by Justice R.G. Juriansz of the Superior Court of Justice dated May 26, 2003 and the sentence imposed dated October 16, 2003.

E N D O R S E M E N T

[1] The appellant raises one ground of appeal on his appeal from convictions. He contends that the trial judge failed to properly consider whether the Crown had disproved unconscious influence among the three complainants (two sisters and an older stepsister) when deciding that the evidence given by each complainant was admissible on the counts relating to the other two complainants.

[2] This was a judge alone trial. Consequently, the trial judge had to both determine admissibility and, if admissible, the ultimate weight to be given to the evidence. Where, as here, admissibility turns in part on the probative force of the evidence, the two functions overlap.

[3] Counsel for the appellant’s well framed argument depends on the application of what was referred to as the “collusion” principle in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at 512-514 to a case where the influence amongst the complainants is said to be the result of “unconscious influences” rather than deliberate collusion. For the purposes of this appeal, we will assume that the “collusion” principle applies to tainting by way of “unconscious influences”. We should not be taken as having decided that issue, however.

[4] The trial judge addressed the admissibility of the evidence from one complainant on the counts involving the other complainants as part of his reasons for judgment. He referred to the relevant passage from Handy and to the possibility of tainting by “unconscious influence”. He concluded:

After considering all the evidence, I am satisfied that their testimony was not tainted by collaboration or unconscious influence resulting from the communication they did have with each other. The differences in their recall of the conversations they had with each other and in the events are not consistent with collaboration, but are consistent with different persons recalling events differently.

[5] The trial judge did not review all of the evidence relevant to the admissibility of the evidence at this point in his reasons. He did, however, conduct an extensive review of that evidence when considering the appellant’s guilt on the various counts. Considering his reasons as a whole, we have no doubt that the trial judge addressed all of the evidence relevant to the potential probative value of the similar fact evidence before concluding that the testimony was not tainted by “unconscious influence”.

[6] It was also argued that the trial judge was wrong when he indicated that contact among the complainants was not the issue when considering the possibility of collusion and the admissibility of the evidence. The trial judge was right in making that observation. Contact was not the issue. The potential effect of contact on the probative value of the evidence was the issue. The trial judge properly addressed that issue.

[7] The appeal is dismissed.

“Doherty J.A.”

“S. Borins J.A.”

“H.S. LaForme J.A.”