R. v. Aguilar (E.G.), (1992) 57 O.A.C. 152 (CA)

• Judge: Lacourcière, Finlayson and Catzman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 25, 1992
• Jurisdiction: Ontario
• Citations: (1992), 57 O.A.C. 152 (CA)

R. v. Aguilar (E.G.) (1992), 57 O.A.C. 152 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Elias Gale Aguilar (appellant)

(C.A. No. 1076/90)

Indexed As: R. v. Aguilar (E.G.)

Ontario Court of Appeal

Lacourcière, Finlayson and Catzman, JJ.A.

September 3, 1992.

Summary:

A man was charged with sexual assault of an eight year old girl. He was a boarder in the girl's house. In response to questioning by the girl's mother the girl described the alleged assault.

The trial judge allowed the mother to testify respecting the girl's state­ments. The trial judge convicted the man. The man appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial on the ground that the hearsay statements of the girl should not have been admitted into evidence.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions - Statements that are relevant and reasonably necessary - Requirement of necessity - A man was charged with sexual assault of an eight year old girl - In response to ques­tioning by her mother the girl described the alleged assault - At trial the mother testified respecting the state­ments made by the girl - The Ontario Court of Appeal held that the mother's testimony of the girl's statements was not admissible as relevant and necessary because the Crown failed to establish that it was reasonably necessary to admit the girl's out-of-court statements (see para­graph 31).

Evidence - Topic 1712

Hearsay rule - Hearsay rule exceptions - Spontaneous declarations - What consti­tutes - A man was charged with sexual assault of an eight year old girl - In response to questioning by her mother the girl described the alleged assault - At trial the mother testified re­specting the state­ments made by the girl - The Ontario Court of Appeal held that the hearsay statements by the girl were not admissible because they lacked spontaneity (see para­graph 34).

Cases Noticed:

R. v. Kahn (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), affd. 41 O.A.C. 353; 113 N.R. 53 (S.C.C.), refd to. [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 35].

Counsel:

Christopher Hicks, for the appellant;

Catherine A. Cooper, for the respondent.

This appeal was heard by Lacourcière, Finlayson and Catzman, JJ.A., of the Ontario Court of Appeal on May 25, 1992. The decision of the court was delivered by Catz­man, J.A., on September 3, 1992.