


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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s.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).

(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.

(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    the victim shall not be published in any document or broadcast or transmitted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.

(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.

(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); 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.

(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. Campbell, 2017 ONCA 209
DATE: 20170310

DOCKET: C61996

Laskin, Hourigan, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Campbell

Appellant

W. Alejandro Munoz, for the Appellant

Amy Alyea, for the Respondent

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.

By the Court:

[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 appellants 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 appellants defence.


ii.

The trial judges reasons were inadequate because he
    failed to explain why he rejected the corroborating evidence of the appellants
    sister, which should have left the trial judge with a reasonable doubt as to
    the appellants 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 appellants evidence
    and in corroboration of D.I.s evidence. For the reasons that follow, we see no
    error in the trial judges 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 Crowns 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 Crowns case in reply, without the
    necessity of further proof. As the appellants counsel reiterated during his
    closing submissions: I want to address therefore that we all understand that
    by admitting these records in that what were 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 appellants 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 appellants position, for the
    truth of their contents. The fact that the records also supported the Crowns
    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 appellants 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 Judges reasons

[13]

The appellant submits that the trial judge erred in not explicitly
    setting out why he did not accept the sisters 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 appellants
    guilt, since it corroborated the appellants 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 judges 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
    appellants sister in relation to the allegations that the appellant had taken
    D.I. to his sisters 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 appellants
    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 sisters
    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 appellants evidence, which necessarily included the
    sisters 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 sisters evidence, the
    absence of additional reasons does not preclude meaningful appellate review. Viewed
    in the context of the entire trial, the trial judges reasons demonstrate how and
    why he reached his verdict.

[18]

The trial judges 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 appellants 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.


