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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

In R. v. Li, 2023 BCCA 47, February 2, 2023, the accused was convicted of the offence of sexual assault. The British Columbia Court of Appeal noted that the complainant (MH) received a massage treatment from the accused at a spa. The accused “was employed at the Spa as a masseuse”. The complainant “testified that the appellant touched, massaged, or squeezed [her] breasts in the course of the massages” (at paragraph 2).

At the trial, MH was asked about the timing of her visit to the Spa. She” stated that she had checked her bank records to confirm the timing of the transaction at the Spa when she paid for her appointment, and in this way was able to pinpoint the timing. MH’s bank records were not adduced in evidence” (see paragraph 22).

The accused denied that the complainant had received a massage from him at the Spa. He testified that he had never met the complainant before. Identity was, accordingly, a key issue at trial.

In convicting the accused, the trial judge stated:

The evidence M.H. gave was cross-examined by counsel and nothing she said was weakened nor challenged to the point where the weight of her evidence was diminished. Throughout her evidence was supported by other evidence, such as her testimony about bank records, that I have just described. [Court of Appeal’s emphasis]

The accused argued on appeal that the trial judge erred in relying “on hearsay evidence to establish the timing of the assault”.

The appeal was allowed and a new trial ordered.

The Court of Appeal noted that the Crown acknowledged that “it would be an error of law for the trial judge to rely on MH’s hearsay evidence about her bank records for the truth of the content of the records. While the records themselves may have been admissible as business records, the Crown did not tender the records in evidence” (at paragraph 70).

The Court of Appeal held that “it is impossible to read” the trial judge’s reasons for judgment “to reflect anything other than the trial judge’s conclusion that MH’s evidence about the content of her bank records corroborated her evidence about the timing of her visit to the Spa” (at paragraph 71).

The Court of Appeal concluded that “the trial judge’s reasons for judgment reflect a legal error in the conviction of the appellant on Count 1. The centrality of the error is such that the curative proviso is not applicable. At the same time, it cannot be said that no properly instructed trier of fact, acting judicially, could reasonably have convicted the appellant on Count 1. In my view, the appropriate remedy in the circumstances is to set aside the appellant’s conviction on Count 1 of the indictment and order a new trial on that Count” (at paragraph 76).