Accused faced charges arising from three alleged sexual assaults on complainant, who was 13 years old at time of assaults and was sister of accused’s then-partner. Crown asked mother about telephone conversation she had with her daughter sister of complainant, where sister told her mother that she saw accused on top of complainant. Crown said at time that hearsay statement from sister was being tendered for narrative purposes only. However, at end of trial, Crown changed his position and argued that statement could be used to prove sister’s state of mind and that she was present during third event. Trial judge ruled in favour of Crown and referred to statement in his reasons for conviction on third incident, but stated he was convinced even without this circumstantial evidence. Crown conceded that trial judge erred in admitting into evidence and relying on sister’s hearsay statement to mother but argued decision could be saved by curative proviso. Accused appealed his convictions. Appeal dismissed. Trial judge explicitly stated that even without hearsay statement he would have accepted evidence of complainant that her relationship with her sister changed because her sister believed she had consented to sexual contact with accused. Accused’s denial of any change in their relationship was not credible because complainant went into foster care following incident and was not visiting her sister. As well, there was evidence from mother of change in relationship between her daughters. There was no basis to reject trial judge’s statement of his view and his findings. It was therefore proper case to apply proviso.
R. v. H. (M.R.) (Dec. 7, 2015, Ont. C.A., F. Feldman J.A., Eileen E. Gillese J.A., and David Watt J.A., CA C55928) 127 W.C.B. (2d) 328.