



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:

486.    (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 judges 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 judges 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 judges 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 Crowns characterization of this as an
    overwhelming case against the appellant.  The appeal is dismissed.


