



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clermont, 2017 ONCA 134

DATE: 20170216

DOCKET: C62746

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ely Clermont

Appellant

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
    judges 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
    judges 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.


