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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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

CITATION: R. v. Bools, 2016 ONCA 554

DATE: 20160708

DOCKET: C60629

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Bools

Appellant

John McCulligh, for the appellant

Lisa Henderson, for the respondent

Heard: July 7, 2016

On appeal from the conviction entered on February 26, 2015 by Justice Meredith Donohue of the Superior Court of Justice.

ENDORSEMENT

[1] At the hearing, the court dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant appeals his conviction for possession, accessing and making child pornography available over a peer-to-peer file sharing network.

[3] The appellant argues that the trial judge erred in admitting a statement he made to police following his arrest. The trial judge used the contradictions between the appellant’s testimony at trial and this statement as a basis for concluding that the appellant was not a credible witness and, in turn, for convicting the appellant.

[4] On the voir dire to determine whether the statement was voluntary, the appellant testified that, at the time he made the statement to the police, he was under the influence of an overdose of prescription medication and was not functioning with an operating mind. In the appellant’s submission, because two police officers who had had contact with him after his arrest and before his statement were not called by the Crown to testify on the voir dire, the trial judge was deprived of evidence that may have corroborated the appellant’s testimony.

[5] We do not give effect to this submission. Contrary to the appellant’s suggestions, there is no rule of law that the Crown must call each and every police officer who had any contact with the appellant prior to his giving his statement. The onus is on the Crown to prove voluntariness in the context of the facts of the particular case. While the unexplained absence of a witness may raise a reasonable doubt, this is to be assessed by the trial judge on the basis of the record.

[6] In this case, the trial judge had the benefit of the videotape of the statement, the testimony of several witnesses regarding their contact with the appellant from the time of his arrest up until the time the statement was made, and his mother’s evidence about how he had behaved in the past after overdosing on his medication.

[7] In her carefully drafted ruling, the trial judge reviewed the evidence and applied the correct law. She was satisfied that the statement was the product of an operating mind and was voluntary. We see no basis to interfere with this finding. Further, the trial judge’s rejection of the appellant’s testimony was not, as suggested by the appellant, based only on the inconsistencies between the appellant’s in-court testimony and his earlier statement. The trial judge reviewed the appellant’s testimony and considered it to be implausible in parts and to be in conflict with other evidence that she did accept. Her scrutiny of the appellant’s evidence and her conclusion that it should be rejected and did not raise a reasonable doubt was well supported.

[8] For these reasons, the appeal is dismissed.

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”