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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
CITATION: R. v. Baggio, 2011 ONCA 80
DATE: 20110128
DOCKET: C49879
COURT OF APPEAL FOR ONTARIO
Doherty, Laskin and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mark Christopher Baggio
Appellant
Marie Henein and Matthew Gourlay, for the appellant
Karen Shai, for the respondent
Heard and released orally: January 25, 2011
On appeal from the conviction entered by Justice Quinn of the Superior Court of Justice dated September 19, 2008.
ENDORSEMENT
[1] In our view, the trial judge thoroughly and correctly addressed the possibility of collusion between the two complainants in assessing the admissibility of their evidence as “similar fact” evidence on the counts involving the other complainant. We cannot accept that the trial judge limited his consideration to collusion in the narrow sense of a deliberate bilateral concoction of evidence. We think the trial judge examined collusion in the broader sense of the potential impact on the independence of the evidence of each complainant of their acknowledged discussions after the first complainant went to the police. We note the trial judge’s reference to the authorities includes authorities that use concoction in the broader sense.
[2] We do not see anything in his reasons to support the contention that the trial judge examined the evidence of the contact between the complainants giving rise to the alleged collusion in isolation from the rest of the evidence relevant to the relationship between the complainants and what might have been said by them during the contacts in issue. The trial judge’s reasons, especially as they relate to the details of the evidence, are thorough.
[3] The trial judge accepted the complainants’ versions of the conversations that are said to have given rise to the potential collusion. On those versions, comments made by G.B. to the effect that the appellant said he would “put a ring on her finger” is what precipitated B.B.’s decision to go to the police. She had previously denied any improper contact with the appellant. However, on her evidence, G.B.’s statement about the ring was identical to a statement that had been made to her by the appellant. She decided at this point to go to the police.
[4] After reviewing the evidence, the trial judge made the following finding:
After reviewing the evidence of G.B. and B.B. I am satisfied on a balance of probabilities that this evidence is not the product of concoction. There was communication between G.B. and B.B. after G.B. had given her statement to the police and relevant to their relationship with Mark Baggio. G.B. wanted B.B. to tell her story about her relationship with Mark Baggio. G.B. did not like Mark Baggio at this point and wanted to do everything possible to prevent him from repeating his alleged conduct with other students. This evidence, however does not amount to collusion. [Emphasis added.]
[5] We see no basis upon which to interfere with this finding of fact. Given that finding, we see no error in the trial judge’s failure to return to the possibility of collusion when addressing the ultimate weight to be given to the evidence of one of the complainants on the counts involving the other complainant.
[6] We conclude by observing that unlike many cases of alleged sexual abuse, this was a case where the complainants’ evidence was confirmed in material respects by many pieces of independent evidence. Crown counsel in her very helpful factum has summarized and catalogued the confirmatory evidence. We find ourselves in agreement with the Crown’s characterization of this as an “overwhelming” case against the appellant. The appeal is dismissed.
“Doherty J.A.”
“J.I. Laskin J.A.”
“E.E. Gillese J.A.”