Regina v. Cones [Indexed as: R. v. Cones]

47 O.R. (3d) 630

[2000] O.J. No. 640

Docket No. C29661

Court of Appeal for Ontario

Carthy, Charron and Sharpe JJ.A.

March 2, 2000

Charter of Rights and Freedoms -- Fundamental justice -- Self-incrimination -- Right to remain silent -- Accused driving in haste across parking lot and striking and injuring person -- Accused turning himself in to police 36 hours later -- Accused claiming at trial that he was trying to escape assault at time of incident -- Trial judge erring in permitting Crown to question accused about his failure to report alleged assault upon arrest -- Use of accused's silence upon arrest violated his Charter rights.

Criminal law -- Trial -- Conduct of Crown -- Cross- examination of accused regarding pre-trial silence -- Accused charged with driving-related offences including leaving scene of accident -- Accused admitting to erratic driving, causing accident and fleeing scene -- Accused testifying that conduct resulted from his attempt to escape assault -- Crown cross-examining accused about his failure to complain to police about alleged assault -- Witness having testified at bail and preliminary hearing about accused having told her of assault -- Trial judge erring in permitting cross- examination about accused's pre-trial silence -- Jury asking question about accused's silence -- Trial judge's instructions to jury regarding use of silence contradictory -- Infringement of accused's s. 7 Charter right to silence -- Appeal from conviction allowed -- Canadian Charter of Rights and Freedoms, s. 7.

The accused drove his motor vehicle in haste across a parking lot, striking and injuring one person and bumping other cars, and left the scene of the accident. He turned himself in to the police 36 hours later and was charged with criminal negligence causing bodily harm and failing to remain at the scene of an accident. At trial, he claimed that he was fleeing an assault at the time of the incident. The trial judge permitted Crown counsel to question the accused about his failure to make a complaint about the alleged assault upon his arrest. Defence counsel objected that the question compromised the accused's right to remain silent, but the trial judge ruled that the accused was being asked not about his failure to give a statement to the police as an accused but rather about his failure to make a complaint as a victim of a criminal offence. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in making a distinction between silence facing charges and silence concerning the reporting of a crime. In this case, the two merged and the "crime" was both the defence of the accused and evidence of his presence at the scene. Recent fabrication was alleged by the Crown at trial and an inquiry was properly made as to when the allegations of assault first came to light. There was evidence before the jury that a witness had testified at the accused's bail hearing that both the accused and his passenger had related the allegation to her. Accordingly, there was no need in the interests of justice to impinge upon the accused's rights under s. 7 of the Canadian Charter of Rights and Freedoms by backing the inquiry into the initial police interview. There was no justification for impugning the credibility of the accused by reason of his silence upon arrest. There was a very serious incursion into the accused's Charter rights. The fact that the jury asked questions pertain ing to the accused's statements (or lack thereof) underlined the significance of this error in the outcome of the trial. The conviction was quashed and a new trial was ordered.

APPEAL by the accused from a conviction for criminal negligence causing bodily harm and failing to remain at the scene of an accident.

R. v. Blackmore (1991), 1991 3986 (NB CA), 117 N.B.R. (2d) 339, 295 A.P.R. 339, 67 C.C.C. (3d) 67 (C.A.); R. v. Robertson (1975), 1975 1436 (ON CA), 21 C.C.C. (2d) 385, 29 C.R.N.S. 141 (Ont. C.A.), consd Other cases referred to R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, 146 D.L.R. (4th) 385, 210 N.R. 321, [1997] 6 W.W.R. 1, 43 C.R.R. (2d) 233, 114 C.C.C. (3d) 385, 6 C.R. (5th) 1; R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555, 113 D.L.R. (4th) 461, 165 N.R. 321, 21 C.R.R. (2d) 1, 89 C.C.C. (3d) 289, 29 C.R. (4th) 209; R. v. Stevenson (1990), 1990 2594 (ON CA), 41 O.A.C. 1, 58 C.C.C. (3d) 464 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 7

Michael Code, for appellant. Alexander Alvaro, for the Crown, respondent.

The judgment of the court was delivered by

[1] CARTHY J.A.: -- The accused agreed at the outset of this trial before a jury that at about 2:30 a.m. on a Saturday morning he drove his vehicle in some haste across a parking lot adjacent to a doughnut shop, striking and injuring one person, bumping against two cars on the street and that he left the scene of the accident. Some 36 hours later, after consulting a lawyer, he surrendered to the police and, other than indicating the location of the vehicle, made no statement as to the circumstances surrounding the incident.

[2] He was charged and eventually convicted of criminal negligence causing bodily harm and failure to remain at the scene of an accident. The focus of the trial was upon the justification put forward by the accused for his conduct, and on the appeal the focus was upon the treatment by the Crown and the trial judge of his credibility related to that justification, particularly arising from the failure to recount the details to the police upon arrest.

[3] The appellant appeals both the convictions and the sentence of three years concurrent on each count.

[4] The evidence of the appellant was that on August 16, 1996, he was at work until 11:00 p.m. and that at 1:00 a.m. on Saturday morning he joined some friends at a discothèque on Bloor Street West in Toronto. He had parked his car in a small plaza on the north side of Bloor Street, adjacent to a doughnut shop. At about 2:30 a.m. he decided to leave and offered a ride to a friend. They crossed Bloor Street and made their way through a group of people to the car at the furthest area of the lot from Bloor Street. The front windows were opened, the motor started, and the appellant was searching for a C.D. to put on the player, when two youths approached, one from either side of the car. The abbreviated version of what followed is that demands were made for money, the appellant refused, and one of the youths punched the appellant, chipping his tooth. He then reacted in panic, fearing a robbery and more violence, and drove onto a sidestreet, where he found his path blocked by other people. He heard his assai lant yelling to others to stop the car and swerved back on the parking lot, intending to cross it diagonally to reach Bloor Street. It was at that point that he struck a person who was lifting his bicycle in the air in what might have been a threatening manner, and, afraid of what he now saw as a group of people ganging up on him he careened onto Bloor Street, striking two cars, and left the scene heading east.

[5] Once away from the scene the appellant's passenger urged that they call the police. The appellant wanted to do this with a lawyer (he does not speak English). He sought contact with a trusted friend to assist him in contacting a lawyer, there was some delay, and again delay in securing a lawyer, with the result that the surrender was 36 hours after the incident.

[6] Thus, on the evidence of the appellant, supported by that of his passenger, the actus reus of the offences was essentially admitted and the issue for the jury was the fault element of each.

[7] Three of the Crown witnesses gave evidence as to the manner in which the appellant drove across the parking lot, accelerating, striking a man, and swerving onto Bloor Street, but none provided any enlightenment as to what may have motivated such aberrant conduct. There was evidence that there was a large group of people milling about and that the car had been parked in the darkest area of the lot. Thus, the witnesses could have been out of sight and hearing of what occurred at the outset.

[8] This digest of some of the evidence at trial is sufficient to test the dominant point of appeal concerning the fact that the appellant's explanations for these offences were not offered to the police upon surrender and arrest. His explanations, if accepted as true, might or might not have provided a defence to either charge, but the trial judge's treatment of them and the jury's questions concerning them made it clear that this was the pivotal point of the trial, and, indeed, the only defence proffered by the appellant.

[9] When the appellant was being cross-examined by the Crown no objection was taken to questions relating to his reasons for not reporting the accident to the police during the 36-hour period following the incident. Those questions went to the actus reus of failing to remain.

[10] Objection was taken to the question:

Q. And I am going to suggest to you, sir, at no point after this happened did you ever make a formal complaint to the police about having been hit on the tooth that night?

[11] The objection, in the absence of the jury, reads:

MR. HOUSE: Yes, Your Honour, in my submission my friend is asking a question which compromises my client's right to remain silent. My client turned himself in to the police. He made no statements. Had he made a statement it is up to him whether he makes a statement once he is arrested and charged with an offence. He was told that fact by his lawyer and he chose not to make a statement. My friend is saying, why didn't you tell them, why didn't you make a statement? That changes the right to remain silent into a trap.

[12] The colloquy continues:

THE COURT: He is being asked about failing to make a complaint about having been a victim of a criminal offence. He is not being asked about failure to give a statement to the police as an accused.

MR. HOUSE: Any statement he makes to the police, that he was a victim of an assault or robbery or whatever, would compromise his right to remain silent.

THE COURT: I think it is an appropriate line of questioning. As long as he has the right to remain silent, obviously if he is accused of a criminal offence.

MR. HOUSE: That includes the right not to make a complaint about that prior time, that is the incident for which there is charges [sic] against him.

THE COURT: I think it is a proper line of questioning. Jury, please.

(Emphasis added)

[13] Crown counsel addressed the jury in closing on the same terms as the trial judge's ruling and the trial judge in his charge said the following:

It is the position of the prosecution that the Cones version, which is supported by his friend, who I will refer to as Jack, is simply not the truth. That there was no attempted robbery; that there was nothing that transpired at that scene which in any way is supported by any of the other evidence. And that the version given to you by Cones and Jack, is simply not the case. It is not the truth.

In considering that issue members of the jury, you are entitled to take into account the fact that the attempt robbery was mentioned to you in this trial for the first time. Let me review that with you. You may recall that in cross-examination Crown counsel asked Mr. Cones if he had ever reported the attempted robbery and the assault on him to the police at any time after he had turned himself in and has been arrested and charged with these offences? Objection was taken to that question, on the grounds, and quite appropriate grounds, that any one who is charge [sic] with a criminal offence has an absolute right to remain silent and is not required to give any explanation. The failure to give an explanation is something from which you should not derive any inference which is adverse to the case of the accused person. I permitted the question to be asked and to be answered on the legal basis at that time that it would be relevant to support an inference that the recital of that story for the first time was a recent fabrication; that is, something that was made up after the fact and presented for the first time at trial.

(Emphasis added)

[14] The friend to whom the appellant turned for assistance in obtaining a lawyer was Ms. Natoli. She had given testimony at a bail hearing including a reference to the passenger telling her of the punching incident. She also gave evidence at trial that both the accused and the passenger related the details of the assault to her in the day or days following the incident. In reference to her evidence the trial judge stated in part:

Then when she was cross-examined, it appears that she had testified on, August 19th, which would have been the Monday following the accident, she testified at a show-cause hearing, which is a process undertaken to determine whether an accused person should be released on bail. You heard what she had said at the show-cause hearing. She testified and said that she had heard from the third person that was the passenger in the car, that when they were approaching the car that they were set upon by a group of young men and that Cones was punched and assaulted. There is no reference to an attempted robbery, so the evidence with respect to the attempted robbery is still subject to the consideration that it is something that was not mentioned before this time. You are entitled to take that into account in determining how much credibility or reliability you place on the testimony relating to an attempted robbery.

[15] The trial judge is the only one to refer to the evidence as that of an attempted robbery, seemingly to distinguish it from a punch and demands for money. In any event, the references to the evidence of Ms. Natoli have the strongest significance in respect of a question from the jury, indicating the focus of attention. After three and one-half hours of deliberation the jury asked:

We would like to know if the incident of the punch was mentioned at any time in the legal proceedings previous to this trial and who mentioned it?

[16] In response, the trial judge reviewed the evidence of Ms. Natoli and concluded:

So the answer to your question is, there was mention of an incident at the Show Cause hearing on August 19th. Whether that is viewed by you as mention of the punch incident, is up to you.

[17] The appellant has put forward a separate ground of appeal concerning the trial judge's response to jury questions suggesting an all or nothing verdict on both counts. This may well have been detrimental to the appellant. It was possible for the jury to accept his story as giving rise to a reasonable doubt on the criminal negligence causing bodily harm charge, but not raising a reasonable doubt on the charge of leaving the scene of an accident. I include some of the exchange at this point to emphasize the focus of attention on the credibility of the explanations put forward by the defence.

[18] The jury's first question was:

Want judge's statement to us re if we believe his story we must find him not guilty on both counts. May we hear that again?

(Emphasis of the jury)

[19] The trial judge repeated his earlier instructions with one modification respecting count 1:

It is only if you reject his evidence and find that it is not the truth then it would be your duty in those circumstances to find him guilty of the criminal negligence count, number 1.

[20] On appeal the Crown conceded that this was an error in that, even if that evidence was rejected, the entirety of the evidence must be considered. It might be added that even if the jury accepted the evidence of the appellant, they would still have to consider whether his conduct fell below the prescribed standard.

[21] When the jury retired the trial judge commented:

Basically the jury is going to have to decide whether this story about the attempt robbery is real or fictional. That is what the issue is in this case. All right.

[22] Some time later the jury returned to ask:

Several of the Jury still aren't clear on your directive. We would like to hear it one more time.

After repeating his initial charge the trial judge had this exchange with the foreperson of the jury:

The Foreperson: I think the concern was if we did or didn't believe the robbery story, then we have to find it on both counts. If you believe the story on one, you believe the story on the other. Whether it was a different count on both, they were saying they believe one but that is why we came back to you, whether if you believe one story, your belief is carried through with the other.

The Court: What do your logical processes tell you?

The Foreperson: If it is one, it is both.

The Court: Yes. If that is your concern, ask yourselves, could it be consistent to believe in relation to one count and not in relation to the other count?

[23] The appellant raises as a separate ground of appeal that the trial judge effectively and erroneously directed a special verdict restricted to credibility in this segment of the charge. That submission is cause for concern, even though it might have benefited the appellant if the jury believed his evidence and felt foreclosed from considering whether that truly absolved him of fault on either count. In any event, I am presently considering the issue of silence upon arrest and the significance of this segment of the exchange with the jury is to underline that the nerve centre of this trial was upon the credibility of the appellant's explanation for his conduct.

[24] On appeal the Crown did not attempt to defend the use of the appellant's silence upon arrest on the trial judge's reasoning that there is a distinction between silence facing charges and silence concerning the reporting of a crime. Clearly, the two merged and the "crime" was both the defence of the accused and evidence of his presence at the scene.

[25] The Crown's first point is that the defence counsel opened up the subject by asking questions as to his panic and fear and conduct in the interval between the incident and the surrender and that the cross-examination was only intended to pursue that exculpatory evidence to its natural conclusion. The appellant rightly points out that the events during the 36 hours constitute the actus reus of the offence of failing to remain, which ended upon surrender. A similar situation was dealt with by the New Brunswick Court of Appeal in R. v. Blackmore (1991), 1991 3986 (NB CA), 67 C.C.C. (3d) 67, 117 N.B.R. (2d) 339 (C.A.) where the court directed a new trial because the trial judge had not warned the jury to ignore questions and answers as to silence upon arrest concerning evidence given by the appellant at trial that their pre-trial conduct was motivated by an attempt to trap a corrupt employer. I agree with that disposition. Here, the error is more than one of omission. There was a specific invitation to use silence before the police as evidence going to credibility.

[26] The second argument of the Crown is that the defence here is similar to that of alibi and is subject to an exception to the general right to silence during the investigative stage of proceedings. He points out that the right under s. 7 is not absolute and refers to authorities such as R. v. Stevenson (1990), 1990 2594 (ON CA), 58 C.C.C. (3d) 464, 41 O.A.C. 1 (C.A.) where the refusal to discuss the crime with an examining psychiatrist was considered relevant to the weight of that doctor's evidence as against another who did have the advantage of full disclosure. In that case the evidence of silence was relevant to evidence the jury would have to weigh and, even there, the court indicated that the jury must be warned that the silence had no bearing on guilt. In the present case the evidence has no relevance to any issue except credibility and guilt or innocence.

[27] An alibi defence has traditionally been treated separately from other defences for the obvious reason that it can so readily be concocted and the perjury which supports it may not be exposed without the opportunity for investigation. An additional feature of alibi, calling for special treatment, is that it involves a completely separate issue to be tried, disembodied from the events surrounding the alleged crime and the witnesses to it.

[28] Yet, no authority has ever suggested that the ends of justice demand that the alibi must be disclosed at the point of arrest and that failure to do so can be specifically referred to in evidence. Questions indicating no previous disclosure of an alibi inferentially includes that to the police at the outset, but does not isolate that interview and invite an inference to be taken from silence.

[29] In the present case there is no need to analogize to alibi defences. Recent fabrication was alleged and inquiry was properly made as to when the allegations of demands and punching first came to light. This was the basis for Ms. Natoli's evidence that both the appellant and the passenger had related the incident to her and she had testified to some of that at the bail hearing. Subject to the arguments of the appellant as to the unfairness of the treatment of that evidence in the trial judge's charge, that evidence was before the jury to test recent fabrication, and there was no need in the interests of justice to impinge upon s. 7 rights by backing the inquiry into the initial police interview.

[30] The jurisprudence under s. 7, and prior thereto, supports my conclusion that, in the circumstances, there is no justification for impugning the credibility of the accused by reason of silence upon arrest.

[31] The prohibition against the use of the fact of exercising the right to silence to draw any inference of guilt was succinctly stated by Sopinka J. in R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874 at p. 918, 146 D.L.R. (4th) 385:

While Hebert confirmed the existence of the right to silence under s. 7, it remained unclear to what use the silence of the detainee could be put. That is, while the detainee had a right to silence on arrest or detention, could this silence later be used against the accused at trial as evidence of his or her guilt? R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, settled the matter. In that case, in addressing the jury, Crown counsel treated the appellant's silence on his arrest as evidence of guilt. The trial judge neglected to instruct the jury to ignore the evidence of silence on arrest, despite requests from both Crown and defence counsel to do so. This Court held that such neglect constituted reversible error. Cory J., speaking for a majority of six judges, stated at p. 1316 that:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer's question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt.

[32] It is to be noted that this observation as extracted from Chambers was in respect of a failure by the trial judge to instruct the jury to ignore evidence of silence. Here, we have not just evidence of silence, but its exploitation through cross-examination and then encouragement by the trial judge to consider that evidence in respect of the credibility of the accused.

[33] The extent to which the right to silence is compromised when there is a defence of alibi was discussed by Lamer C.J.C. in R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555 at p. 578, 113 D.L.R. (4th) 461:

Before trial, the criminal law seeks to protect an accused from being conscripted against him- or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151. With respect to disclosure, the defence in Canada is under no legal obligation to co-operate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence. In obiter, this court suggested in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 333, that:

The suggestion that the duty [of disclosure] should be reciprocal may deserve consideration by this court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. . . .

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role. [Emphasis added.]

However, it should be borne in mind that this protection against disclosure is not an absolute one. For example, failure to disclose an alibi defence in a timely manner may affect the weight given to the defence: E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987), at para. 16:8070; McWilliams, Canadian Criminal Evidence, supra, at paras. 28:10711 to 10712.

[34] In R. v. Robertson (1975), 1975 1436 (ON CA), 21 C.C.C. (2d) 385, 29 C.R.N.S. 141 (Ont. C.A.), Martin J.A. speaking for the majority at p. 419, expressed concern that while it is proper to introduce evidence at trial that the explanation of the accused has not been advanced at any early stage, if related to silence after being cautioned, it represents a trap to an accused who relies on the right to silence. He suggests that trial judges exercise care in identifying a reason for introducing evidence of silence so as to avoid the difficulty in instructing a jury once it has heard the evidence.

[35] Dubin J.A. delivered dissenting reasons directed to the voluntariness of a statement and in obiter, observed at p. 399-400:

As has been observed, evidence to be admissible must be relevant to an issue at trial. It has long been held that, in appropriate cases, a trial Judge may instruct a jury that in considering the weight to be given to any explanation advanced by an accused at trial, they may take into account whether such explanation had been given at an earlier time. An alibi is a very good example where such instruction is appropriate. However, a general instruction of that nature does not zero in on the silence of the accused during interrogation.

The right of an accused to remain silent in the face of police interrogation has been traditional throughout the development of the common law.

As pointed out by Diplock, L.J., in R. v. Hall (1970), 55 Cr.App.R. 108 at p. 112:

The caution merely serves to remind the accused of a right which he already possesses at common law. The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not in exercise of that right, but was an acknowledgement of the truth of the accusation.

In the absence of any issue raised by the defence, the mere silence of an accused during police interrogation cannot be said to advance the case for the Crown. It cannot be a step on the way to the proof of the accused's guilt. It, therefore, becomes, in my opinion, irrelevant to any issue at trial. To prove as part of the Crown's case the fact that the accused has exercised his common law right to remain silent would constitute silence a trap if his silence is placed in evidence against him at his trial.

(Emphasis added)

[36] Applying these principles to the facts presented on this appeal it is clear to me that the trial judge erred in permitting cross-examination as to the silence of the accused upon being cautioned -- there was no obligation to report a crime as implied by the ruling and the silence of the accused was turned into a trap. The Crown was entitled to cross-examine the accused, Ms. Natoli, and the passenger as to when the defence was first discussed and what was related at the bail hearing, all directed to the argument of recent fabrication. There was no necessity in that context, in Dubin J.A.'s words, to "zero in on the silence of the accused during interrogation."

[37] The trial judge's erroneous ruling then led directly to his contradictory instructions to the jury that the failure to give an explanation "is something from which you should not derive any inference which is adverse to the case of the accused person", followed immediately by an instruction that the same fact of silence could support an inference of recent fabrication. This is a graphic demonstration of the difficulty in instructing a jury once such evidence is admitted, as anticipated by Martin J.A. in Robertson, supra. The accused was painted as a potential perjurer by reason of his silence on arrest and in the same breath the jury was told that no adverse inference as to his defence should be drawn.

[38] In my view this ground of appeal represents a very serious incursion into the Charter rights of the appellant and the questions from the jury directed to the very issue of recent fabrication and the credibility of the accused, would remove any doubt, if such there were, that there is room for the application of the proviso.

[39] In my view there must be a new trial, and while there are four other grounds of appeal (some of which have been adverted to in passing), and each of which had sufficient merit that we called on the Crown for response, the errors that they purport to identify are not such as are likely to recur at a new trial, and I choose, in those circumstances, not to pursue them. Of course, the sentence appeal is redundant.

[40] I would allow the appeal, quash the convictions and order a new trial.

Appeal allowed.