WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. W.L., 2015 ONCA 37
DATE: 20150123
DOCKET: C54693
Gillese and Lauwers JJ.A. and Speyer J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
W.L.
Appellant
Keith E. Wright, for the appellant
Greg Skerkowski, for the respondent
Heard: December 18, 2014
On appeal from the conviction entered on May 4, 2011 by Justice Gregory Mulligan of the Superior Court of Justice, sitting with a jury.
Speyer J. (ad hoc)
[1] The appellant was convicted by a jury of sexual assault and sexual interference in relation to R.A., his step-daughter. He seeks to set aside his convictions and has argued multiple grounds of appeal. One ground of appeal has merit. For the reasons that follow, I would allow the appeal and order a new trial on the basis that Crown counsel’s cross-examination of the appellant on his post-arrest silence exceeded permissible limits. Further, the absence of a clear jury instruction on this issue is fatal to upholding the jury verdict.
FACTS
[2] R.A. was 9 years old when the final incident of sexual abuse is alleged to have occurred. The allegations of the appellant’s sexual misconduct were triggered by events that took place on the evening of June 23, 2009. The complainant testified that she went to bed that evening around 9:30 p.m. Her mother, J.A., was at work, and her two brothers, C.A. and Z.A., were in other rooms of the family home. The appellant entered her bedroom and proceeded to put his hand down the complainant’s underwear touching her vagina. The appellant subsequently left the complainant’s bedroom but not before admonishing her not to tell anyone.
[3] The complainant was unable to sleep: she went into her brother C.A.’s bedroom and told him what had occurred. C.A. testified that when his sister came into the bedroom, she was crying. Initial attempts to make telephone contact with their mother were unsuccessful. J.A., being at work, was unable to answer her cell phone.
[4] C.A. and the complainant enlisted the assistance of their older brother Z.A who was in another room of the house watching television. Eventually, Z.A. succeeded in contacting his mother, and told her of his sister’s complaint.
[5] J.A. received her son’s call at work at about 12:30 a.m. She returned home, woke up her daughter, and had a brief conversation with her. Without waking the appellant, she gathered up her children, left the family home, and phoned the police from her truck. She met briefly with the police in the parking lot of a No Frills store. Arrangements were made with the authorities for the complainant to come to the police station the following morning to provide a video-taped statement. J.A. and her three children stayed at a motel for the remainder of the evening.
[6] In addition to the events of the previous evening, the complainant disclosed additional acts of sexual abuse when she provided her video-taped statement. The complainant’s evidence was that the appellant’s sexual misconduct started, albeit infrequently, in 2006 when the family lived in Woodbridge, and continued on a more frequent basis after the family moved from Woodbridge to their home in Richmond Hill.
[7] On the same day that R.A. provided her video-taped statement, the appellant was formally arrested at his place of employment, advised of the precise charges he was facing and given his right to counsel. He was transported to a York Region police station and, again at the station, advised of the nature of the charges. What he was not told until later that evening was the identity of the complainant.
[8] On the evening of his arrest, the appellant was interviewed for two and one half hours by the officer in charge of the investigation. The interview was video-taped. It was an agreed statement of fact at trial that no police officer involved in the investigation threatened or coerced the appellant in any manner, or offered any promises or inducements to provide a statement.
[9] Prior to beginning the interview, the police attempted to telephone the appellant’s personal lawyer. Although a message was left on his answering service, there was no response. Accordingly, a call was placed to duty counsel. Duty counsel spoke with the appellant for about five minutes prior to the interview.
[10] As a matter of strategy, the officer-in-charge conducted the interview with the appellant in a manner that did not immediately identify R.A. as the complainant. Near the conclusion of the interview, the officer advised the appellant that it was his step-daughter who was the complainant. The appellant acknowledged touching his step-daughter on two or three occasion but denied that it was for a sexual purpose. He provided no further details of the touching or its purpose. The appellant specifically denied any acts of oral sex or sexual intercourse.
DID THE CROWN’S CROSS-EXAMINATION RENDER THE TRIAL UNFAIR?
Context
[11] A brief description of the appellant’s defence and a digest of the examination-in-chief and the cross-examination are necessary to flesh out this issue.
[12] The appellant testified at trial. At the heart of his defence was a denial of touching his step-daughter for a sexual purpose. The appellant denied ever touching the complainant’s vagina: he testified that he touched the complainant in the rectal area of her body on three occasions. The purpose of the touching, on each occasion, was to inspect and deal with a problem the complainant experienced with pinworms. The appellant’s evidence was that the complainant’s mother was aware of her daughter’s problem. He explained that he attended a pharmacy, at the complainant’s mother’s direction, to purchase the necessary medication to address the problem. As noted, these details that provided an innocent explanation as to the nature of the touching were not provided to the investigating officer during the interrogation.
[13] It is apparent from the record that, as a tactical matter, trial counsel decided to address the failure of the appellant to provide this fuller explanation to the police during the interview. At the beginning of the appellant’s examination-in-chief, defence counsel posed the following questions that elicited the following answers:
Q: Did you touch R.A.?
A: Yes.
Q: And was it sexual?
A: No.
Q: Okay, did you explain yourself in the video with respect to the touching?
A: No. I did not.
Q: And why is that the case. Why did you not do that?
A: Um, I was afraid at the time. I was trying to make sense of something that did not make sense. …I couldn’t explain it at the time. I was- my mind was running.
Q: Okay, Well now is your chance. So please tell us about the touching of R.A.
A: The only time I touched R.A. was to check for pinworms. There was never any type of sexual touching.
[14] The appellant proceeded to testify in detail as to the circumstances of each occasion when he touched his step-daughter with respect to pinworms. Defence counsel then returned to the issue of why the appellant did not provide the police with a fuller account of the innocent nature of the touching:
Q: And in your statement, you didn’t explain any of this. Correct?
A: I was scared at the time. Um, it was very confusing. Um, It seemed that things were being put to me rather than asking me. Sort of, more like a suggestion than a question. And trying to process what was going on, like I did say I touched her and at the time and at the time when I was thinking of it, it was the only time I remembered touching R.A.-that would-that could be in that area. I didn’t have the opportunity at that time. Things were, like I said, very confusing. In retrospect- if I could do it all over again I- I likely would have said a lot more but it just- I was caught off guard.
[15] Crown counsel’s cross-examination challenged the appellant’s credibility and specifically honed in on the appellant’s testimony as to why he did not provide the police, at the time of the interview, with “an innocent explanation.” Moreover, Crown counsel questioned the appellant on why it took two years, from interrogation to trial, to provide for the first time a fuller account as to the non-sexual nature of the touching. Further, Crown counsel cross-examined the appellant on his failure to tell the investigating officer about matters extraneous to the pinworm issue. The following are samples of the cross-examination:
Q: Sir, you are at the police station. You’re charged with very serious crimes?
A: Yes.
Q: You finally break down and tell the police you touched R.A., correct?
A: Yes.
Q: You don’t explain it. Don’t you think it’s a good time to be explaining it?
A: If I would have been able to talk at the time. I was very upset.
…………………….
Q: You were able to talk there. Weren’t you?
A: Yes. Some.
Q: So, you weren’t able to give an innocent explanation?
A: No. I was able to talk but not explain everything that was running through my mind at that moment. It was all over the place.
…………………………….
Q: Sir, police are asking you why. You could have explained the quote/unquote, non-sexual aspect, but you didn’t. You didn’t because there was no innocent explanation sir. None at all.
A: Yes, there was.
Q: You have had almost two years and now you are telling us about? Did it take you this long to make it up?
A: No, I didn’t make anything up.
………………………………
Q: Sir, you’re with- in front of a police officer, you’ve been arrested for very serious charges. Correct?
A: Yes.
Q: You may have an explanation. Correct?
A: At the time, no. I wasn’t sure what was going on.
Q: Well is it because you took two years to get an explanation. Is that why?
A: No, That came- that was after the fact.
……………………………..
Q: So does he (referring to an aspect of C.A.’s evidence) say it two year after it happened like you say two years after it happened about the pinworms? Is that the same thing?
A: No.
………………………….
Q: Now, sir, even at this time, you didn’t mention to the officer anything about J.A. stealing money from Garda. Nothing like that. You didn’t think to mention that.
A: Not at the time. No.
…………………………..
Q: Well, sir, this was the time, this was your chance, I’m going to put it to you sir, to give an innocent explanation if you wanted to. To tell the police about anything. Any trouble you were having with R.A. or her family.
A: Yes.
………………………………….
THE POSITION OF THE PARTIES
[16] The appellant argues that Crown counsel’s cross-examination of the appellant on his failure to give an innocent explanation to the police, at the time of his interrogation, trespassed on his right to silence. Further, he says the cross-examination of the appellant regarding the delay in waiting two years to provide an explanation, from the date of the police interview to trial, was improper and highly prejudicial. Counsel also contends that even if it was legally permissible, given the tactical decisions made by defence counsel at trial, for Crown counsel to question the appellant as to why he did not give an explanation in respect to pinworms in his statement to the police, the breadth of the cross-examination was a serious error. Finally, it is submitted that it was incumbent upon the trial judge to give a clear instruction cautioning the jury that the appellant had a right to silence when interrogated by the police, and that his failure to provide a fuller account of his conduct could not be used to infer guilt.
[17] The Crown concedes that as a general rule, Crown counsel is not permitted to impeach the testimony of an accused based on his choice to remain silent. However, the Crown submits that this is an exceptional case because the appellant made a tactical decision, in advance of cross-examination, to explain why he did not provide a fuller explanation as to the nature of the touching. That is, the appellant chose to put in issue the reason why he did not say more to the police at the time of his interrogation. This decision opened the door for Crown counsel to cross-examine the appellant on this aspect on his testimony and could be taken into account by the jury in assessing the appellant’s credibility.
LEGAL PRINCIPLES
[18] Certain principles that govern the right of an accused to remain silent post-arrest are in play in this appeal. Deeply embedded in our law is the principle that an accused person has the right to remain silent at the investigative stage of a prosecution as well as at trial: R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321, at para. 50. Accordingly, evidence of pre-trial silence cannot be used as positive evidence to infer guilt: R. v. Crawford, [1996] 1 S.C.R. 858, 96 C.C.C. (3d) 481, at para. 38. While a trier of fact may reject an accused’s explanation as not being believable, and use that finding in assessing credibility, a trier of fact is prohibited from using the silence of an accused as a basis for drawing an adverse inference as to credibility: R. v. Palmer, 2008 ONCA 797, at para. 9.
[19] Further, the constitutional right to remain silent is not extinguished when an accused chooses to speak to an officer with respect to some matters, but not others. That is, an accused cannot be cross-examined on matters on which he has chosen to remain silent: R. v. G.L., 2009 ONCA 501, 250 O.A.C. 266, at para. 39.
[20] An exception to the general rule prohibiting cross-examination on post-arrest silence occurs when an accused makes it an issue at trial: R. v. McNeill (2000), 48 O.R. (3d) 212 (Ont. C.A.), 144 C.C.C. (3d) 551; R. v. G.A.O. (1997), 200 A.R. 363 (Alta. C.A.), 119 C.C.C. (3d) 30; R v. M.C.W., 2002 BCCA 341, 165 C.C.C. (3d) 129. Importantly, however, it is incumbent upon the trial judge to instruct the jury as to the permissible and impermissible uses that can be made of such evidence. It is worth noting that even where the cross-examination was permitted as an exception to the general rule, a new trial was ordered in each of the three above cited cases, due to the failure of the trial judge to provide the jury with a proper limiting instruction.
[21] Finally, another legal tenet is applicable in this appeal: there is no duty or obligation on any accused to assist the prosecution: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 333; R. v. M.B.P., [1994] 1 S.C.R. 555, at p. 578.
DISCUSSION
[22] It is wrong to underestimate, and difficult to exaggerate, the importance of the right to cross-examine witnesses to demonstrate truth and test credibility in any criminal trial. From the perspective of an accused, the right to cross-examine witnesses for the prosecution, “without significant and unwarranted constraint”, is an essential component of the right to make full answer and defence: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2. Similarly, Crown counsel is entitled to conduct a vigorous cross-examination of a witness, including an accused, as part of the truth finding function of the trial. Nevertheless, because Crown counsel performs a unique, quasi-judicial function, there are well-established constraints that limit the type of questions that may be asked of an accused on cross-examination.[1] One well-known limitation is that Crown counsel cannot ask questions that diminish an accused’s constitutional right to silence by inviting the jury to draw impermissible inferences as to guilt or credibility based on the exercise of that right.
[23] I accept that Crown counsel was justified in asking the appellant questions concerning his explanation of the reasons he did not give a fuller account of the pinworm occurrences to the investigating officer. The essence of the appellant’s evidence was that he did not amplify upon his assertion that his touching of the complainant was for a non-sexual purpose because he was afraid and confused. The appellant’s silence on this point during his interrogation became a fact-in-issue, one raised by the appellant in his examination-in-chief. As the appellant had “opened the door” on this issue, Crown counsel was entitled to cross-examine the appellant on it within reasonable limits: McNeill, at paras. 34-35. It became a matter which the jury was entitled to take into account in assessing the appellant’s credibility.
[24] Regrettably, the scope of Crown counsel’s cross-examination went beyond permissible limits. Particularly troubling are the questions asked of the appellant about his two year silence, from the date of arrest until trial, and the reason, during that period, that he failed to explain what he meant when he denied that the touching of the complainant was for a sexual purpose. These questions clearly implied that the appellant was under a duty to provide an explanation. Moreover, this line of questioning also suggested that the appellant’s version of events was not credible on the basis it had not been proffered at an earlier date. It is the right of any accused to remain silent, and there is no duty or obligation to provide the authorities with any assistance either prior to or at trial.
[25] In her all-out assault on the appellant’s post-arrest silence, Crown counsel did not limit her questioning to the failure to tell the police about the pinworm incidents. The scope of the cross-examination pertaining to the appellant’s silence was wide ranging. It included a failure of the appellant to tell the police about several collateral matters such as J.A.’s alleged thefts from her employer.
[26] While it is true that the appellant’s testimony opened the subject matter of his reason for not giving a fuller account of his pinworm explanation to the police, thereby opening the door to cross-examination on the issue, it is important that the scope of the cross-examination be confined to reasonable limits so as to minimize the potential for trial unfairness. I echo the wisdom of Moldaver J.A. (as he then was) in McNeill, where a similar situation arose, that it “would have been preferable had Crown counsel not seized upon the appellant’s response to launch a full scale attack on his credibility”: para. 35.
[27] Even if it were determined that Crown counsel’s cross-examination fell within the boundaries of fairness, a proper instruction to the jury was of critical importance. There was no such instruction. The jury ought to have been told that they were entitled to take into account, in assessing the appellant’s credibility, all of his evidence, including his explanation of why he did not provide a fuller account of his conduct. The jury ought to have been cautioned, however, that the appellant had a right to remain silent, had a right to choose what to say and what not to say, and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial: Palmer, at para. 9. Further, the jury ought to have been told that the appellant was under no duty or obligation to disclose anything to the police and no adverse inference could be drawn against him from his failure to do so.
[28] Because of the seriousness of the errors, it cannot be said the verdict would necessarily have been the same. Thus, I am unable to invoke the curative proviso at s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.
[29] Accordingly, I would allow the appeal and order a new trial.
Released: January 23, 2015 (“E.E.G.”)
“C.M. Speyer J. (ad hoc)”
“I agree. E.E. Gillese J.A.”
“I agree. P. Lauwers J.A.”
[1] See: Robert J. Frater, “The Seven Deadly Prosecutorial Sins” (2001) 7 Can. Crim. L. Rev. 209; Robert J. Frater, Prosecutorial Misconduct (2009) at pp. 141-161; Suhail Akhtar, “Improprieties in Cross-Examination” (2004), 15 C.R. (6th) 236.