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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Docket: C61996

Panel: Laskin, Hourigan, and Roberts JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Daniel Campbell Appellant

Counsel

W. Alejandro Munoz, for the Appellant

Amy Alyea, for the Respondent

Hearing and Appeal

Heard: February 14, 2017

On appeal from: the conviction entered on June 29, 2015 by Justice K.N. Barnes of the Superior Court of Justice, sitting without a jury.

Decision

By the Court:

Introduction

[1] The appellant appeals his convictions for historical sexual assault and sexual exploitation against the complainant, D.I. These offences occurred from 1988 to 1991, when D.I. was between 13 and 16 years old, and the appellant was his Big Brother. In particular, among other incidents, the trial judge found that the appellant had sexually assaulted and exploited D.I. when he brought him to the house of the appellant's sister.

[2] The appellant advances two main grounds of appeal:

i. The trial judge erred in admitting records from the Big Brothers organization concerning his relationship with D.I., for the truth of their contents, and in allowing the Crown to split its case by filing them in reply after the close of the appellant's defence.

ii. The trial judge's reasons were inadequate because he failed to explain why he rejected the corroborating evidence of the appellant's sister, which should have left the trial judge with a reasonable doubt as to the appellant's guilt.

Admission of Big Brothers Records

[3] Following the parties' agreement, the trial judge admitted the Big Brothers records as prima facie evidence of the truth of their contents and allowed the Crown to file them in reply. In particular, the trial judge accepted the dates in the records as to when the relationship between the appellant and D.I. began and ended, in preference to the appellant's evidence and in corroboration of D.I.'s evidence. For the reasons that follow, we see no error in the trial judge's admission and reliance on the records for this purpose.

[4] As a statutory exception to the hearsay rule, s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, allows business records to be admitted into evidence, upon the satisfaction of the formal criteria, including notice, as set out in that section of the Act. Subsection 30(1) of the Act provides as follows:

Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

[5] The Crown gave timely notice under s. 30 of the Act that it intended to produce the Big Brothers records. It filed an affidavit, to which the records were attached as an exhibit, to satisfy the formal requirements under the Act concerning the authenticity of the records, indicating that they were "made in the usual and ordinary course of business".

[6] There was no dispute that the records were authentic business records. Moreover, the factual information about the dates of the relationship between the appellant and D.I. as contained in the records would have been admissible if given in oral evidence by the author of the records. Most importantly, the parties consented to the admission of the records as an exhibit at trial, as "prima facie evidence", according to defence counsel.

[7] The Crown having met the formal prerequisites under s. 30 of the Act, the records were therefore admissible as business records as prima facie proof of the truth of their contents: R. v. Smith, 2011 ABCA 136, 510 A.R. 37, at para. 46.

[8] The admission of the records into evidence did not preclude other evidence or available inference raising a doubt about the reliability of their contents: Smith, at para. 33. The trial judge was entitled to accept or reject the evidence provided by the records, just as if it had come from a witness during the trial: Smith, at para. 35. How the trial judge weighed the evidence proffered by the records, in light of the whole of the evidence, was a matter of his discretion.

[9] In the course of oral argument, it became clear that the appellant did not dispute that the Big Brothers records would have been admissible under s. 30 of the Act as prima facie proof of the truth of their contents if they had been filed as part of the Crown's case in chief. However, the appellant submits that the trial judge could not rely on them as evidence of the truth of their contents for the reasons that they were not filed by the Crown as part of its case in chief and that the appellant did not agree that they could be relied upon as such in reply.

[10] We do not agree. The trial judge had expressly canvassed the issue of the records' admissibility with counsel, specifically asked them to consider whether or not the documents could be considered for the truth of their contents, and invited them to come to an agreement if possible, failing which he would hear a motion and make a ruling. This proved unnecessary because after the close of the defence, the parties advised the court that they had reached an agreement that the records could be marked as a numbered exhibit and be filed "without objection" as part of the Crown's case in reply, without the necessity of further proof. As the appellant's counsel reiterated during his closing submissions: "I want to address therefore that we all understand that by admitting these records in that what we're establishing by virtue of the notice given and the consent given, the records are themselves prima facie evidence" (Trial Transcript, vol. 13, at p. 2).

[11] The admission of the records created no unfairness to the appellant and came as no surprise. Indeed, it was the appellant's counsel who first referred to the Big Brothers records during the cross-examination of D.I. and sought to rely on portions of the records that assisted the appellant's position, for the truth of their contents. The fact that the records also supported the Crown's case by providing a basis to challenge the credibility of the appellant in relation to the length of his Big Brother relationship with D.I. does not affect their admissibility. In any event, the trial judge stated that he was satisfied of the appellant's guilt of the offences beyond a reasonable doubt, even without reliance on the records.

[12] The Big Brothers records were admissible into evidence. Thereafter, the weight that the trial judge gave to the records was an exercise of his discretion that is subject to deference absent error. In either case, we see no basis to interfere.

Adequacy of the Trial Judge's Reasons

[13] The appellant submits that the trial judge erred in not explicitly setting out why he did not accept the sister's evidence that she had never come home to find the appellant and D.I. in her home, as D.I. had alleged, or why that evidence did not leave him with a reasonable doubt as to the appellant's guilt, since it corroborated the appellant's denial that the incident had ever taken place.

[14] We do not accept this submission.

[15] It is well-established that a trial judge need not detail his findings on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically understood: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. It is also necessary to read a trial judge's reasons as a whole, in the context of the evidence, issues, and submissions at trial, together with an appreciation of the purposes or functions for which they are delivered: R. v. Villaroman, 2016 SCC 33, 338 C.C.C. (3d) 1, at para. 15; R.E.M., at para. 16.

[16] The trial judge reviewed the evidence of D.I., the appellant, and the appellant's sister in relation to the allegations that the appellant had taken D.I. to his sister's house and sexually abused him. He heard the submissions of Crown counsel as to why he should accept the evidence of D.I. and why the evidence of the sister and the appellant concerning the incident in her home should be rejected. Similarly, he considered the submissions of the appellant's counsel as to why he should accept the evidence of the appellant and his sister. The trial judge explained why he accepted that D.I. was in the sister's home. In particular, he noted D.I.'s specific details about the unusual layout of the house, which the sister confirmed in her testimony. And he stated why he did not accept the appellant's evidence, which necessarily included the sister's evidence.

[17] While it would have been helpful if the trial judge had explicitly set out his analysis of all of the evidence, including the sister's evidence, the absence of additional reasons does not preclude meaningful appellate review. Viewed in the context of the entire trial, the trial judge's reasons demonstrate how and why he reached his verdict.

[18] The trial judge's findings were open to him on the record and are entitled to deference absent error. He was alert to the necessity of not simply choosing between D.I.'s evidence and that proffered by the defence, and considered the evidence as a whole. He gave detailed reasons for accepting D.I.'s evidence and for finding the appellant's evidence to be unworthy of belief. There is no basis to interfere.

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

Released: March 10, 2017

John Laskin J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.