DATE: 20030225

DOCKET: C36442

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA and CHARRON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Carol Ann Bauman, for the respondent

Respondent

• and -

JESSE REYNOLDS

Howard Borenstein, for the appellant

Appellant

Heard: January 7, 2003

On appeal from the convictions imposed by Justice Robert F. Scott of the Superior Court of Justice, sitting without a jury, on March 29, 2001.

CHARRON J.A.:

[1] The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent contrary to sections 343(d), 85(2) and 351(2) of the Criminal Code. He appeals against his convictions only. The appeal turns on whether the trial judge applied the proper burden of proof in his assessment of the evidence or whether he improperly placed an onus on the appellant to establish a defence.

[2] The offences relate to the robbery of a Toronto-Dominion Bank at approximately 2:00 p.m. on August 1, 2000 by two individuals who brandished what appeared to be real handguns. One of the two robbers, Christopher Baggott, was identified by use of the bank surveillance cameras. He pleaded guilty to the offences before the appellant’s trial. The identity of the second suspect could not be determined from the bank surveillance photographs because the hood of his coat effectively shielded his face. The Crown alleged that the appellant was the second perpetrator.

[3] There was no direct identification evidence against the appellant. The evidence against him consisted of various items of circumstantial evidence and the testimony of his former girlfriend, Shelly Lavoie. In arriving at the verdict, the trial judge discounted most of the items of circumstantial evidence presented by the Crown, on the basis that “alone or together, these facts could easily be coincidence only in identifying the second person.” No issue is raised on this appeal in respect of the trial judge’s assessment of those items of evidence and, therefore, I do not need to describe them to dispose of this appeal. The remaining evidence that was not so discounted by the trial judge, and upon which the verdict was based, consisted of Ms. Lavoie’s testimony and statements made by the appellant concerning his whereabouts on the day of the robbery. The appellant did not testify.

[4] The gist of Ms. Lavoie’s testimony was as follows. When first questioned by the police on August 11, 2000, ten days after the robbery, Ms. Lavoie told the police that the appellant had been with her at the time of the offence. On August 17, 2000, she was arrested for giving this initial statement on the ground that it was false. She then recanted her first statement and told the police that the appellant had admitted to her his involvement in the crime. Ms. Lavoie was charged in respect of her initial false statement and pleaded guilty to the offence. At the time of trial, she was awaiting sentence. Ms. Lavoie testified at trial that she had initially lied to the police because the appellant had asked her to do so. She further testified about the appellant’s confession to her about his involvement in the robbery.

[5] Evidence was also adduced at trial that the appellant had told the police at the time of his arrest that he had been with his girlfriend at the time of the offence. Further evidence was adduced that he had lied about going to work on the day of the robbery to the staff at the halfway house where he resided.

[6] It was the defence’s position at trial that Ms. Lavoie’s testimony was not worthy of belief and that the circumstantial evidence on its own was insufficient to constitute proof beyond a reasonable doubt. As indicated earlier, the trial judge agreed with the defence position in respect of most of the items of circumstantial evidence, which he found to be of no probative value in arriving at the verdict. He stated in his reasons that the “real issue in this case is whether Shelly Lavoie… is to be believed in whole or in part, and whether her evidence and the surrounding facts assist the Crown in proving its case beyond a reasonable doubt.” Hence it is clear that the case against the appellant rested mainly on Ms. Lavoie’s testimony.

[7] In her final submissions, counsel for the defence noted several weaknesses in Ms. Lavoie’s testimony. In addition, counsel argued that Ms. Lavoie’s testimony should be scrutinized given the circumstances in which she had given her second statement to the police about the appellant’s involvement in the robbery. These circumstances were the following.

[8] As indicated earlier, upon first being contacted by the police on August 11, 2000, Ms. Lavoie provided the appellant with an alibi. About a week later, the police contacted her and told her that she would be arrested for making a false statement. She was told that either she could cooperate with the police and voluntarily come with them, or they would get a warrant for her arrest. She chose to cooperate. The police therefore attended at her home, arrested her, brought her to the police station, and placed her in a cell. At the time, Ms. Lavoie was 20 years old and the single mother of a one-year-old infant.

[9] About an hour and a half later, the police officers took her out of the cell, and questioned her further. Ms. Lavoie testified at trial that the police officers threatened her by saying that if she did not tell the truth she could face five years in jail and that she could lose her child. She indicated that they also told her that if she did not cooperate she would have to stay in jail over the weekend and wait for a bail hearing the next Monday. They also allegedly told her that one of the witnesses to the robbery was so traumatized that the witness was now in therapy; that the getaway car had hit a pedestrian; and that the appellant had a gun that could put an eight- to twelve-inch hole in a person if it was fired. The police officer who testified denied having said these things to Ms. Lavoie except for the comments in respect of the getaway car. The officer also agreed that he indicated to Ms. Lavoie that the police had photographs of the robbery. Ms. Lavoie ultimately recanted her first statement and provided a videotaped statement admitting that she had provided a false alibi for the appellant and stating that he had confessed to her about his involvement in the robbery.

[10] Based on these circumstances, it was argued that Ms. Lavoie’s second statement to the police was given in an atmosphere of oppression and that her reiteration of that statement in her testimony should therefore be afforded little weight.

[11] In his reasons, the trial judge made no express reference to the circumstances surrounding the taking of Ms. Lavoie’s second statement. However, after reviewing some of the other evidence that related to Ms. Lavoie’s credibility, the trial judge concluded as follows:

As she repeated this evidence under oath before me on Monday, and although she was confused somewhat as to specific dates and times, she did not waver, nor was she challenged on important matters. As well, the defence was not able to establish effectively any reason for Shelly Lavoie to recant her initial statement and thereby betray Jesse Reynolds, except to tell the truth when confronted by the police.

The credibility of Shelly Lavoie is supported by her plea of guilty to the charge of fabricating evidence on her August 11th, 2000 statement, wherein she provided the alibi to Jesse Reynolds. Although she has not been sentenced to date due to the preparation of a presentence report, I’m satisfied that her testimony in this court was not coerced with the promise of a lenient sentence.

Two factual findings flow from the evidence of Shelly Lavoie which I accept. Having found Jesse Reynolds’ alibi to be a falsity and a clear attempt to mislead as to his direct involvement in the bank robbery, I draw from it an inference of guilt. As an aside, the fact that Jesse Reynolds did not testify, there is a narrow exception to the impermissibility of using silence to build a case against the accused at a trial, and the trier of fact is entitled to an inference about the credibility of the defence of the defendant, which in this case I found to be adverse.

Secondly, Jesse Reynolds confessed to Shelly Lavoie about his involvement with Christopher Baggott in the robbery [emphasis added].

[12] The appellant appeals his conviction on three grounds. He submits that the trial judge erred:

a) in his assessment of Shelly Lavoie’s credibility;

b) in using the evidence of false alibi to show consciousness of guilt in the absence of evidence that he had participated in the concoction of the alibi; and

c) in drawing an adverse inference from his failure to testify.

In my view, the last ground of appeal is the most significant and I will deal with it first.

[13] The appellant submits that the trial judge improperly relied on his failure to testify as an independent piece of evidence in assessing the strength of the Crown’s case against him. He submits that in doing so, the trial judge effectively reversed the onus of proof and that, on this ground alone, the conviction cannot stand.

[14] Crown counsel concedes that there must be a new trial if this court concludes that the trial judge drew an impermissible inference from the appellant’s failure to testify. However, counsel submits that the trial judge’s reasons are open to a different interpretation. She submits that the trial judge, in considering the appellant’s failure to testify, was in effect making the kind of permissible use that is described in the following passage from R. v. Johnson (1993), 1993 3376 (ON CA), 12 O.R. (3d) 340 at 347 (C.A.), adopted in R. v. Lepage (1995), 1995 123 (SCC), 95 C.C.C. (3d) 385 at 396-97 (S.C.C.):

No adverse inference can be drawn if there is no case to answer. A weak prosecution’s case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 1908 243 (BC SC), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), “circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”. That point, it seems to me, can only be the point where the prosecution’s evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt could be found on the evidence. It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise. When linked in that fashion to the strength of the Crown’s case, the failure to testify is no different than the failure to call other defence evidence…. If the Crown’s case cries out for an explanation, an accused must be prepared to accept the adverse consequences of his decision to remain silent: R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (C.A.), at p. 542 C.C.C., p. 42 [sic] C.R. But the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can be inferred: R. v. Armstrong (1989), 52 C.C.C. (2d) 190…. As Doherty J. pointed out in R. v. Manchev, an unreported judgment of the Ontario High Court, August 23, 1990, the accused’s failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the trial which may assist in deciding what inferences should be drawn from the evidence adduced.

[15] Alternatively, the Crown argues that this case was in effect one where the defence of alibi was advanced so as to give rise to the narrow exception to the impermissibility of using silence to build a case against the accused, as set out in R. v. Noble (1997), 1997 388 (SCC), 114 C.C.C. (3d) 385 (S.C.C.). The Court in Noble held that, where the defence of alibi is advanced, the trier of fact may draw an adverse inference about the credibility of that defence from the failure of the accused to testify and subject himself to cross-examination.

[16] I am unable to read the trial judge’s reference to the appellant’s failure to testify in the permissible sense described in Johnson above. The trial judge did not simply refer to the appellant’s failure to testify after finding that the Crown’s case supported a conclusion of guilt beyond a reasonable doubt. Rather, I can only conclude from the express words that he used and their context, that the trial judge was considering this case to be one where the defence of alibi was advanced and, hence, one where the narrow exception to the impermissibility of using silence to build a case against the accused applied. Although the trial judge states that his consideration of the appellant’s failure to testify was an “aside”, he makes a clear finding that he draws an adverse inference from this fact. It seems from his reasons, therefore, that the trial judge used the silence of the appellant to build the case against him and to support his ultimate finding that the case had been proven beyond a reasonable doubt.

[17] That inference would be permissible if I accepted Crown counsel’s alternative submission that the appellant, in effect, advanced a defence of alibi at trial. I do not, however, accept that submission. In my view, the Noble exception had no application to this case. The appellant did not present a defence of alibi. If I understood Crown counsel’s argument correctly, it is submitted that counsel for the defence at trial, in attacking the credibility of Ms. Lavoie’s version of events, as related in her second statement to the police and in her testimony, was in effect suggesting that her first statement to the police, where she provided the appellant with an alibi, was true. Hence, it is argued that, in this sense, the appellant was advancing a defence of alibi.

[18] I am unable to accept this position. This argument was never advanced by the defence at trial and, indeed, it could not have been made. Ms. Lavoie’s first statement was not in evidence for the truth of its contents. Hence there was no alibi evidence forthcoming from Ms. Lavoie at the trial. Further, the fact that the Crown introduced in evidence the appellant’s own allegedly false statements as to his whereabouts at the time of the robbery, in and of itself, does not mean that the defence must be taken to be advancing a defence of alibi so as to give rise to the Noble exception. If that were so, the accused’s right to silence could be effectively abridged in any case where an accused lied about his whereabouts at the time of the offence and the Crown was successful in adducing this evidence at his trial. In any such case, if the accused did not testify in answer to this evidence, his silence could be used to build the case against him. Such a result would undermine the presumption of innocence.

[19] I therefore conclude that the trial judge erred in drawing an adverse inference against the appellant from his failure to testify. This error, in and of itself, necessitates a new trial. Hence, I will deal with the remaining two grounds of appeal only insofar as they remain relevant to the disposition of this appeal, or to the extent that any comments may provide guidance at the new trial.

[20] Insofar as Ms. Lavoie’s credibility is concerned, the appellant submits that the trial judge failed to address many of the frailties of Ms. Lavoie’s testimony. In light of my conclusion on the preceding ground of appeal, it is not necessary for me to consider whether the trial judge erred in his assessment of Ms. Lavoie’s testimony. However, the appellant further submits that her testimony was so fraught with difficulties that it was not capable of supporting the verdict. Since the appellant was essentially convicted on the basis of Ms. Lavoie’s testimony, he is, in effect, submitting that the verdict is unreasonable.

[21] I do not accept this argument. In my view, it was open to the trial judge, based upon a proper assessment of Ms. Lavoie’s evidence, to accept it despite its frailties, and further, to convict the appellant on the basis of that evidence if it met the required standard of proof.

[22] Finally, I note the following with respect to the inference of guilt drawn by the trial judge based on his conclusion that “Jesse Reynolds’ alibi” was a falsity. Firstly, as for the finding that the alibi was fabricated, it is not clear from the reasons whether the trial judge was relying solely on Ms. Lavoie’s testimony in support of this conclusion or whether he was also placing some reliance on the appellant’s own statements as to his whereabouts. In respect of the latter, the admissibility and probative value of this evidence would have to be determined at a new trial in accordance with the principles set out by this court in R. v. O’Connor, 2002 3540 (ON CA), [2002] O.J. No. 4410 (C.A.). In O’Connor, this court held that, before the Crown will be allowed to introduce evidence to show that an accused has fabricated an out-of-court statement, the trial judge must first determine whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which if accepted could reasonably support a finding of fabrication. In making this determination, the trial judge may consider the circumstances in which the allegedly false statement was made. It is only where there is independent evidence capable of supporting an inference that the accused made a false statement because he or she was conscious of having committed the offence that the evidence will be sufficiently probative to warrant its admission.

[23] Secondly, in respect of the inference of guilt drawn from the finding of fabrication, it is clear that Ms. Lavoie’s allegedly false statement to the police as to the appellant’s whereabouts cannot constitute evidence against the appellant unless the appellant participated in this attempted concoction of an alibi. Evidence that an accused attempted to fabricate an alibi can be evidence of a consciousness of guilt, which in turn can constitute circumstantial evidence pointing to the accused’s guilt. See R. v. Babinski (1991), 67 C.C.C. (3d) 187 (Ont. C.A.), aff’d (1992), 1992 44 (SCC), 76 C.C.C. (3d) 286 (S.C.C.). The question of whether there is evidence capable of supporting a finding that the appellant participated in Ms. Lavoie’s concoction is one that is better left for determination at the new trial.

[24] For these reasons, I would allow the appeal, set aside the convictions and order a new trial.

Released: FEB 25 2003 Signed: “Louise Charron J.A.”

KMW “I agree K.M. Weiler J.A.”

“I agree R.S. Abella J.A.”