Court of Appeal for Ontario

Date: 2017-02-16 Docket: C62746

Judges: MacPherson, Juriansz and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Ely Clermont Appellant

Counsel

Ely Clermont, acting in person Vincenzo Rondinelli, duty counsel Luke Schwalm, for the respondent

Heard: February 10, 2017

On appeal from the conviction entered on April 29, 2016 by Justice Marc A. Garson of the Superior Court of Justice.

Endorsement

[1] The appellant appeals his conviction for impaired driving causing bodily harm, contrary to s. 255(2) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] With the assistance of duty counsel, the appellant argues that the trial judge erred by admitting into evidence for the truth of its contents a prior inconsistent statement allegedly made by a defence witness, Ms. Simms.

[3] We do not give effect to this ground of appeal. The prior inconsistent statement made by Ms. Simms was tendered in evidence by the Crown in reply for the purpose of challenging Ms. Simms' credibility. It was clearly admissible for that purpose.

[4] In his reasons, the trial judge, after determining that it was admissible as being relevant to the issue of Ms. Simms' credibility, went on to find that it could also be used for the truth of its contents. The trial judge did this despite the fact that the Crown had never sought to use the statement for its truth and neither party at trial had made submissions as to whether it could be used in this manner.

[5] We agree with duty counsel that it was clearly inappropriate for the judge to have carried out the analysis as to whether the statement could be used for the truth of its contents. That the trial judge did so in this case does not, however, constitute reversible error.

[6] As submitted by the Crown, it is apparent from a review of the trial judge's reasons that, although he found that he could use the statement for the truth of its contents, he did not then, in fact, use or rely on the truth of the statement to convict the appellant. The trial judge used the statement only for the proper purpose of assessing Ms. Simms' credibility and concluding that portions of it which were favourable to the defence should be rejected.

[7] It is after explaining why he rejected this evidence that the trial judge carried out the impugned analysis. That analysis is then followed by the judge's consideration of whether the Crown had met its onus. In this portion of his reasons, the trial judge outlined in detail why he concluded, beyond a reasonable doubt, that the appellant had committed the offence. The grounds set out do not depend or rely on the impugned statement being admitted for its truth. As a result, we are satisfied that, when read as a whole, the reasons show that the trial judge did not misuse the statement.

[8] In any event, even if the trial judge had improperly relied on the statement for the truth of its contents, we would nonetheless have dismissed the appeal. This was an overwhelming Crown case and an appropriate one to apply the proviso.

[9] In conclusion, the appeal is dismissed.

J.C. MacPherson J.A. R.G. Juriansz J.A. Paul Rouleau J.A.