



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 Lavoies 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 appellants hands.  The trial
    judge found that Millers 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 re
ferred to the Statement, noting that Mr.
    Lavoie denied making this statement and did not adopt it.  She then reiterated
    Lavoies 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 Lavoies 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), 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
    Statements 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 complainants
    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 Lavoies testimony.  During submissions,
    defence counsel urged the court to rely on the Statement and reject Lavoies
    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 Lavoies 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 Lavoies
    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.


