



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Herdman, 2019 ONCA 863

DATE: 20191031

DOCKET: C65704

Fairburn, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trevor Jesse Herdman

Appellant

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 judges instruction to the jury, following
    closing addresses, to disregard a double hearsay statement that the appellant relied
    upon in his closing.

[3]

The appellants mother was said to have been
    acting on the appellants behalf on the appellants 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 appellants 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:

1)

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

2)

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 appellants 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 officers 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.


