COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Latimer, 2013 ONCA 195

DATE: 20130402

DOCKET: C55912

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Latimer

Appellant

Mark Ertel, for the appellant

Michael Perlin, for the respondent

Heard: March 26, 2013

On appeal from the conviction entered on November 17, 2011, by Justice Heather E. Perkins-McVey of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] After a trial by judge alone, the appellant, Jeffrey Latimer, was convicted of assault with a weapon. He appeals against conviction.

Background in brief

[2] On May 28, 2010, two men approached Jacques Lavoie (“Lavoie” or the “complainant”) in a Goodlife Fitness parking lot in Ottawa. One man was brandishing a metal baseball bat. He swung the bat, striking the back of Lavoie’s head.

[3] Lavoie was taken to hospital by ambulance. He suffered relatively minor injuries.

[4] There were two independent witnesses to the incident: Leslie Miller and Aaron Kromm. Both testified at trial. Miller, a Goodlife employee, knew the appellant. She saw him immediately after the incident, holding a bat, running towards a vehicle and leaving the scene. Kromm observed the assault but did not know the appellant or Lavoie.

[5] Lavoie testified that he knew the appellant, and that it was the appellant who had hit him.

[6] A report prepared by one of the ambulance attendants included the following statement attributed to Lavoie: “Assaulted by Person unknown to the patient” (the “Statement”).

[7] The ambulance report was filed at trial, on agreement, as an exhibit. There was no issue at trial that the ambulance report was admissible as evidence that the Statement had been made. No application was brought to admit the Statement for the truth of its contents.

[8] When cross-examined at trial on the Statement, Lavoie denied having made it. He said that he told the ambulance attendant that he knew who assaulted him but that he did not know the second man.

[9] The defence called no evidence.

The Trial Decision

[10] The central issue at trial was whether it was the appellant who had struck the complainant.

[11] The trial judge found Miller to be an unbiased and independent witness who was unshaken in cross-examination. Miller recognized the appellant because, at the time of the incident, he had been a Goodlife client for a lengthy period. Miller had a clear and unobstructed view when she observed the appellant, as described above. Miller saw only one bat and it was in the appellant’s hands. The trial judge found that Miller’s description of what the appellant was wearing matched the description of what Lavoie stated the appellant was wearing.

[12] The trial judge noted that Kromm also testified that he saw only one person with a bat and that the description of clothing worn by the person with the bat matched the description given by both Miller and Lavoie.

[13] The trial judge referred to the Statement, noting that “Mr. Lavoie denied making this statement and did not adopt it.” She then reiterated Lavoie’s testimony that he told the ambulance attendants that he knew who assaulted him but did not know the other man.

[14] Based on the totality of the evidence, the trial judge found that the appellant had the baseball bat and assaulted Lavoie with it.

The Issue

[15] The appellant raises a single issue on appeal: did the trial judge fail to appreciate the evidentiary value of the Statement?

Analysis

[16] In our view, the trial judge made no error in respect of the Statement.

[17] The Statement was hearsay, and inconsistent with Lavoie’s in-court testimony that he was certain the man who had struck him was the appellant. Absent admissibility under the principled exception to the hearsay rule, a prior inconsistent statement made by a witness but not adopted by that witness as true, is admissible only in assessing the witness’ credibility and not for the truth of its contents: see R. v. Johnson (2002), 2002 44987 (ON CA), 166 C.C.C. (3d) 44 (Ont. C.A.), at para. 60.

[18] Lavoie did not adopt the Statement: he expressly denied its veracity or even having made it. As such, as acknowledged by the appellant before this court, the Statement’s only potential value was for impeachment.

[19] The appellant relies on R. v. Scott, [2011] N.B.J. No. 507 (C.A.). In Scott, the New Brunswick Court of Appeal held that the trial judge erred by refusing to weigh a prior inconsistent statement in assessing the complainant’s credibility. That is not this case.

[20] In the present case, it is clear that the trial judge was alive to the Statement and its potential for impeachment of Lavoie’s testimony. During submissions, defence counsel urged the court to rely on the Statement and reject Lavoie’s evidence identifying the appellant as the assailant. The court discussed this point with counsel. Further, in her reasons, the trial judge acknowledged the existence of the Statement. However, she then noted that Lavoie denied making the Statement and did not adopt it.

[21] From the reasons as a whole, it is clear that the trial judge recognized that the Statement could affect her assessment of Lavoie’s credibility, if she found that he had indeed made the Statement. It is equally clear that the trial judge found that he had not made the Statement and that she accepted Lavoie’s in-court evidence as true, in spite of the Statement attributed to him.

Disposition

[22] Accordingly, the appeal is dismissed.

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”