DATE: 20060927

DOCKET: C38437

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – TROY CHEMIN (Applicant/Appellant)

BEFORE:

MOLDAVER, GOUDGE and SHARPE JJ.A.

COUNSEL:

S.J. Von Achten

for the appellant

Shelley Hallett

for the respondent

HEARD & ENDORSED:

September 25, 2006

On appeal from conviction by Justice Moira Caswell of the Superior Court of Justice, sitting with a jury, dated February 26, 2002 and sentence imposed dated June 17, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We would not give effect to any of the grounds of appeal raised by the appellant.

[2] On the jury selection issue, the appellant concedes that there was no misconduct on the part of the Sheriff that would bring this case within s. 629(1) of the Code. The appellant further concedes that there was no prejudice to him or misconduct on the part of the Crown. At most, what occurred here was an irregularity that s. 670 relieves against. There is no basis for suggesting, in the circumstances, that justice was not seen to be done.

[3] With respect to McIntosh’s guilty plea and whether it could be used to discredit McIntosh as a prior inconsistent statement, we see no need to finally resolve that issue. McIntosh gave evidence at the appellant’s preliminary hearing in which he testified that the appellant did act as a lookout. Thus, even assuming that the guilty plea could not be used as a prior inconsistent statement, its use for that purpose occasioned no harm to the appellant.

[4] As for the submission that the trial judge erred in refusing to allow counsel to cross examine Mr. McIntosh about being beaten by the police, the trial judge quite properly stopped counsel from adducing inadmissible hearsay concerning the officer’s reputation. In any event, counsel had cross-examined the witness as to whether the officer had done anything to him and therefore, the area was already covered.

[5] With respect to the refusal to allow counsel to cross-examine the witness James on the s. 9(2)/KGB voir dire, it was conceded that the sole issue on the voir dire was the reliability of the videotape statements. On that issue, it was not incumbent on the Crown to call James; the Crown simply had to call those witnesses that it was relying upon to establish reliability.

[6] On the issue of the medical records, the records were admitted, they were before the jury and the appellant, in our view, suffered no prejudice.

[7] Finally, with respect to the alleged improprieties in the Crown’s closing address, the trial judge corrected the unfortunate slip concerning counsel’s “knowledge” that James had told the police the truth in his video statements. In our view, the appellant suffered no prejudice having regard to the trial judge’s curative remarks. On the issue of speculation, the Crown’s remark about the synchronization of the clocks was nothing more than a common sense inference, given that there were two separate stores involved and there was no evidence that the stores in question had attempted to synchronize their clocks. The appellant abandoned all other grounds of appeal raised in the factum.

[8] In the result, the appeal is dismissed.