Court of Appeal for Ontario

Date: 2018-06-20 Docket: C61678

Judges: Simmons, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Ashley Dacosta Appellant

Counsel

Mark Halfyard, for the appellant

Christine Tier, for the respondent

Heard and Released

Heard and released orally: June 20, 2018

On appeal from the conviction entered on December 18, 2015 by Justice J.D. Condon of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was acquitted of one count of assault relating to events that occurred in the summer of 2013 but convicted of a second count of assault relating to events that occurred on December 25, 2014. He appeals from the conviction.

[2] The appellant and the complainant had been involved in an on-again off-again relationship and had a child together in April 2013. As of December 25, 2014, the appellant and the complainant were co-parenting their child and maintained a non-intimate relationship.

[3] The appellant advanced two grounds of appeal in oral argument. First, the appellant argues that the trial judge materially misapprehended the evidence in finding that the appellant (as opposed to the complainant) testified that he invited the complainant to sleep over at his house on the evening of Christmas Day 2014 and in concluding that this was because the appellant wanted a pleasant evening. The appellant argues that this finding and conclusion were pivotal to the trial judge's rejection of the appellant's version of what happened during the evening. The trial judge rejected the appellant's evidence because the appellant's claim that he decided to leave and not disclose his true destination (the home of his former wife who was out of town) effectively sabotaged his desire for a pleasant evening.

[4] We do not accept this argument. There was evidence from the appellant capable of supporting the finding that he wanted a pleasant evening. The trial judge's misstatement of who extended the invitation to the complainant to stay overnight was not material to his reasoning. The appellant's evidence about failing to disclose where he was going before leaving the house made no sense no matter who extended the invitation.

[5] Second, the appellant argues that the trial judge erred in relying on the opinion of the police officer to whom the complainant ultimately disclosed her allegations that the complainant did not expect that charges would be laid as a result of her disclosure.

[6] The appellant contends that the trial judge used the officer's opinion improperly to bolster the complainant's position that she did not wish to involve the police. We do not accept this argument. The so-called opinion that the trial judge referred to was merely a compendious summary by the officer of the complainant's reaction upon being told of the police protocol. The officer also testified as to the specifics of the complainant's reaction.

[7] We do not accept that the complainant's statements that accompanied her emotional reaction were inadmissible hearsay. They were not admitted for the truth of the statements but rather were an integral part of the complainant's state of mind and emotional reaction upon being informed of the police protocol.

[8] The appeal is dismissed.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.