Court of Appeal for Ontario
Between:
Her Majesty the Queen Respondent
and
Garry Little Appellant
Before: MacPherson, Cronk and Gillese JJ.A.
Counsel:
Michael Davies, for the appellant
Jamie C. Klukach, for the respondent
Heard: April 11, 2007
On appeal from the conviction entered on August 21, 2002 and the sentence imposed on March 3, 2004 by Justice Dianne M. Nicholas of the Ontario Court of Justice.
Appeal Book Endorsement
1The appellant appeals his convictions for assault, assault with a weapon, and possessing a baseball bat for a purpose dangerous to the public peace.
2The appellant submits that the trial judged erred by admitting John Clarke’s statement to Constable Urquhart because the statement was not made under oath and was not made in circumstances where Clarke appreciated the solemnity of the occasion and the importance of telling the truth and where he was not told that the statement could be used in court.
3We disagree. The trial judge carefully considered the reliability component of the test for the admission of hearsay evidence. She found that there were many indicia of reliability, including the timing of the statement, Clarke’s demeanour when he gave it, and confirmatory evidence from police officers and his 911 call. Importantly, any danger caused by admitting the statement was reduced by Clarke’s availability for cross‑examination. Although the trial took place prior to the release of R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57, we are satisfied that the principles identified in Khelawon regarding the reliability inquiry for the admission of hearsay evidence were met in this case.
4The appellant contends that the trial judge made improper comments, both during Clarke’s testimony and in her judgment, about Clark’s reluctance to testify. These comments, including “concerns for your safety” and “he has been silenced”, implicitly constituted improper aspersions on, and prejudgment of, the appellant’s credibility.
5We disagree. Ultimately, the trial judge rejected the appellant’s evidence. Her negative view of his evidence was well‑founded. In that context, her comment to Clarke when he was testifying was intended to encourage him to testify truthfully and her comment in her judgment was an entirely permissible observation concerning his demeanour as a witness.
6Finally, the appellant submits that the trial judge challenged his credibility during his testimony.
7We disagree. The appellant was testifying about welfare fraud at the time. Read in context, the trial judge’s comment related only to his testimony on this very peripheral issue.
8The appeal is dismissed.
