



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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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

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 appellants 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
, [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 complainants 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 sisters
    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 accuseds explanation that nothing happened
    in the third incident. I am satisfied beyond a reasonable doubt as to the
    accuseds 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 accuseds 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 sisters 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 appellants 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 judges 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 mothers 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 mothers 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 complainants
    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.


