Court of Appeal for Ontario
Date: 2019-10-31 Docket: C65704
Judges: Fairburn, Harvison Young and Thorburn JJ.A.
Between
Her Majesty the Queen Respondent
and
Trevor Jesse Herdman Appellant
Counsel
Andrew Furgiuele, for the appellant
Brian G. Puddington, for the respondent
Heard and released orally: October 29, 2019
On appeal from: the conviction entered by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, on April 3, 2018.
Reasons for Decision
[1] The appellant was convicted of dangerous driving, possession of a stolen vehicle and licence plates, possession of cocaine for the purposes of trafficking and two counts of failing to comply with a probation order. He represented himself at trial.
[2] The appellant claims that the trial judge failed to provide him with adequate assistance resulting in a miscarriage of justice. He focuses his objection upon the trial judge's instruction to the jury, following closing addresses, to disregard a double hearsay statement that the appellant relied upon in his closing.
[3] The appellant's mother was said to have been acting on the appellant's behalf on the appellant's Facebook account when the statement was made. That statement was said to have been made by a "Matthew Parks", who apparently suggested that he had loaned the stolen vehicle to the appellant. The appellant's mother sent a printed copy of the purported communication to the appellant at the detention facility where he was being held. It was intercepted and a copy was provided to the police.
[4] When the appellant put the purported contents of the communication to a police officer in cross-examination, that officer did not confirm the contents of the communication, suggesting instead that, at its highest, it was "some type of a conversation". The officer also said that the police were unable to verify that Matthew Parks exists.
[5] The appellant says that the trial judge erred by:
failing to inform the appellant about the need for a voir dire to make the purported communication admissible for the truth of its contents; and
failing to assist the appellant with his cross-examination.
[6] We disagree.
[7] The suggestion about what "Matthew Parks" said was put in cross-examination after the appellant had already been reminded, more than once, about the presumptive inadmissibility of hearsay evidence. At best, this was a double hearsay statement. Not only was it of uncertain origin, but it was of uncertain content, the officer failing to confirm what was actually contained in the communication.
[8] Moreover, context is important. The questioning came out during the appellant's efforts to demonstrate animus between the appellant and the officer being questioned, the focus being on concerns he had over the seizure of his mail. Accordingly, at the time that the purported statement came out, it was not at all clear that the appellant would want to use the purported statement for the truth of its contents. When the appellant had the officer's answer, that it was "some type of a conversation", he simply moved on, trying to reinforce the animus point.
[9] In these circumstances, there was nothing to have alerted the trial judge to the fact that the appellant would attempt to use the purported statement during his closing for the truth of its contents. Accordingly, the trial judge did not fail in his duty to assist the appellant and correctly instructed the jury to disregard the statement for the truth of its contents.
[10] We are satisfied that the trial judge provided reasonable assistance to the appellant. Against the context of the record as a whole, we are satisfied that the trial judge met his duty to ensure the trial was effective, efficient, and fair to both sides: R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16. Nothing more was required here.
[11] The appeal is dismissed.
"Fairburn J.A."
"Harvison Young J.A."
"Thorburn J.A."