



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dacosta, 2018 ONCA 588

DATE: 20180626

DOCKET: C61678

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Dacosta

Appellant

Mark Halfyard, for the appellant

Christine Tier, for the respondent

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 judges rejection of the appellants
    version of what happened during the evening.  The trial judge rejected the
    appellants evidence because the appellants 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
    judges misstatement of who extended the invitation to the complainant to stay
    overnight was not material to his reasoning.  The appellants 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 officers opinion
    improperly to bolster the complainants 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 complainants reaction upon being told of the police protocol.  The
    officer also testified as to the specifics of the complainants reaction.

[7]

We do not accept that the complainants 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 complainants
    state of mind and emotional reaction upon being informed of the police
    protocol.

[8]

The appeal is dismissed.

Janet
    Simmons

Grant
    Huscroft J.A.

B.W.
    Miller J.A.


