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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. M.R.H., 2015 ONCA 853

DATE: 20151207

DOCKET: C55928

Feldman, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.H.

Appellant

Counsel:

Michael Davies and Meaghan McMahon, for the appellant

Andrew Cappell, for the respondent

Heard: December 1, 2015

On appeal from the conviction entered on February 23, 2012 by Justice Stephen A. J. March of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant faced charges arising from three alleged sexual assaults on the complainant, who was thirteen years old at the time of the assaults and was the sister of the appellant’s then-partner. Following a trial before a judge in the Ontario Court of Justice, he was acquitted of the charges arising from two of the events and convicted of sexual assault and sexual interference relating to the third event. The sexual interference charge was stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] The appellant appeals his conviction. He has abandoned his appeal from sentence.

[3] The witnesses at the trial included the complainant and her mother for the Crown, and the appellant for the defence. The complainant’s sister, who the complainant said was a witness to the third event of sexual assault, did not testify.

[4] The complainant stated that all three events took place in the home where the appellant and her sister lived with their baby at times when the complainant was visiting their home, which she frequently did. The complainant said that the first event happened during the middle of the night, while her sister was in the bedroom, and the second event happened in the afternoon while the sister was not home. The third event took place while the sister was home. The appellant sat next to the appellant on the living room couch and began sexually touching her. The sister then came into the room and believed that the touching between the complainant and the appellant was consensual, which the complainant denied.

[5] After that, the sisters, who had been close, were no longer close and did not see one another.

[6] The appellant denied everything. He claimed that after the alleged third event, he noticed no change in the sisters’ relationship.

[7] Crown counsel asked the mother about a telephone conversation she had with her daughter the sister of the complainant, where the sister told her mother that she saw the appellant on top of the complainant. Crown counsel said at the time that the hearsay statement from the sister was being tendered for narrative purposes only. However, at the end of the trial, he changed his position and argued that the statement could be used to prove the sister’s state of mind and that she was present during the third event.

[8] The trial judge ruled in favour of the Crown and referred to the statement in his reasons for conviction on the third incident. However, he then stated:

Even without this circumstantial evidence, I am prepared to accept the evidence of [the complainant] that the relationship between her and [her sister] changed as a result of [the sister] believing that [the complainant] consented to the sexual contact between herself and the accused.

This is significant evidence as the deteriorating relationship between [the complainant and her sister] is highly probative of there being a sexual assault by the accused on [the complainant] and that [the sister] observed some of it occurring. It is a logical inference to draw from that evidence. The accused has denied any change in the relationship. This denial is not credible as it is contradicted by the other evidence [of the witnesses].

I am rejecting the accused’s explanation that nothing happened in the third incident. I am satisfied beyond a reasonable doubt as to the accused’s guilt on the third incident and there will be a finding of guilt.

In my view, this corroboration only applies to the third incident and does not allow me to reject the accused’s evidence as to the first two incidents (Transcript, at pp. 351-2).

[9] On this appeal, the Crown concedes that the trial judge erred in admitting into evidence and relying on the sister’s hearsay statement to the mother. However, the Crown submits that the court should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 on the basis that the error was harmless and could not have affected the verdict.

[10] We agree. The trial judge explicitly stated that even without the hearsay statement he would have accepted the evidence of the complainant that her relationship with her sister changed because her sister believed she had consented to sexual contact with the appellant. The appellant’s denial of any change in their relationship was not credible because the complainant went into foster care following the incident and was not visiting her sister. As well, there was evidence from the mother of a change in the relationship between her daughters.

[11] There is no basis for this court to reject the trial judge’s statement of his view and his findings. It is therefore a proper case to apply the proviso.

[12] The second ground of appeal is that the mother’s evidence regarding her view of the change in her daughters’ relationship should not have been accepted because it was based only on what she was told by her two daughters at the time.

[13] We do not agree. Although the mother’s view was informed by what she was told, she was reporting her view and knowledge as her daughters’ mother. During the period while the complainant was frequently visiting her sister and the appellant, it was the mother who would drive the complainant to the neighbouring municipality, which was also the home of the complainant’s biological father. The mother also visited the complainant while she was in foster care and stated that the complainant did not visit her sister during that time. The trial judge did not err in stating that the mother was in a “good position to observe the change” in the relationship.

[14] The appeal is therefore dismissed.

“K. Feldman J.A.”

“Eileen E. Gillese J.A.”

“David Watt J.A.”