R. v. Biladeau

93 O.R. (3d) 365

Court of Appeal for Ontario,

Sharpe, Lang and Epstein JJ.A.

December 9, 2008

Criminal law -- Trial -- Conduct of Crown -- Comment on accused's failure to testify -- Accused not testifying at his trial on charge of sexual assault -- Defence being based on consent or accused's belief in consent -- Crown stating twice in closing address to jury that complainant's evidence was "uncontradicted" -- Crown stating in reference to accused's belief in consent that accused did not testify and so could not be asked directly what he thought at relevant time -- Crown's closing address violating both the spirit and purpose of s. 4(6) of Canada Evidence Act -- Jury asking questions supporting inference that jury may have been concerned about accused's failure to testify -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6).

The accused was charged with sexual assault on a developmentally delayed woman residing in a group home. The defence position was that any sexual contact was consensual or based upon the accused's belief that the complainant was consenting. The accused did not testify. In his closing address to the jury, Crown counsel observed twice that the complainant's evidence stood uncontradicted, and then when discussing question of accused's belief in consent, the Crown noted that "he didn't testify, so he can't be asked directly what he thought at the time or what he construed or what he knew". Defence counsel applied for a mistrial on the ground that the Crown's remarks amounted to an invitation to the jury to draw an adverse inference from the fact that the accused did not testify, contrary to s. 4(6) of the Canada Evidence Act. The trial judge dismissed the application. The judge instructed the jury that the accused need not testify and that the onus was upon the Crown. The accused was convicted. He appealed.

Held, the appeal should be allowed.

In order to violate s. 4(6) of the Canada Evidence Act, there must be something more than a reference to "uncontradicted" evidence or to evidence that "wasn't denied". It must be shown that the Crown's remarks pointedly drew the attention of the jury to the fact that there is evidence which the accused could give and which he has failed to give. Standing alone, Crown counsel's two references to the fact that the Crown's evidence stood uncontradicted would probably not have violated s. 4(6). However, his comment that the accused "didn't testify, so he can't be asked directly what he thought" clearly amounted to a comment on the failure of the accused to testify within the letter of s. 4(6). It also violated the spirit or purpose of s. 4(6). In context, Crown counsel was pointing out to the jury not only that the accused remained silent and offered no explanation for what occurred on the night in question, but also that he was not prepared to expose himself to cross- examination. The strong implication was that the jury could and should infer that the accused's silence and his refusal to expose himself to cross-examination were indicia of guilt. The Crown's remarks appeared to be part of a well-crafted address designed to highlight the accused's failure to testify. As the complainant's evidence was challenged and there was some evidence that contradicted her evidence, this was not an appropriate case in which to apply the proviso.

APPEAL from the conviction of Harris J. of the Superior Court of Justice, sitting with a jury, dated May 11, 2007 on a charge of sexual assault.

Cases referred to R. v. Knox (2006), 2006 16479 (ON CA), 80 O.R. (3d) 515, [2006] O.J. No. 1976, 211 O.A.C. 164, 209 C.C.C. (3d) 76, 142 C.R.R. (2d) 99, 31 M.V.R. (5th) 60, 69 W.C.B. (2d) 519 (C.A.), distd [page366] Other cases referred to R. v. Boss, 1988 190 (ON CA), [1988] O.J. No. 2016, 30 O.A.C. 184, 46 C.C.C. (3d) 523, 68 C.R. (3d) 123, 42 C.R.R. 166, 7 W.C.B. (2d) 88 (C.A.); R. v. Karthiresu, 2000 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291, 45 W.C.B. (2d) 294 (C.A.); R. v. Lee, 1970 526 (ON CA), [1970] 3 O.R. 285, [1970] O.J. No. 1533, [1970] 5 C.C.C. 183 (C.A.); R. v. McConnell, 1968 22 (SCC), [1968] S.C.R. 802, [1968] S.C.J. No. 61, 69 D.L.R. (2d) 149, [1968] 4 C.C.C. 257, 4 C.R.N.S. 269; R. v. Miller, 1998 5115 (ON CA), [1998] O.J. No. 5356, 116 O.A.C. 331, 131 C.C.C. (3d) 141, 21 C.R. (5th) 178, 40 W.C.B. (2d) 399 (C.A.); R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 146 D.L.R. (4th) 385, 210 N.R. 321, [1997] 6 W.W.R. 1, 89 B.C.A.C. 1, 114 C.C.C. (3d) 385, 6 C.R. (5th) 1, 43 C.R.R. (2d) 233, 34 W.C.B. (2d) 192; R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, 93 N.R. 42, J.E. 89-521, 21 Q.A.C. 258, 47 C.C.C. (3d) 289, 68 C.R. (3d) 193, 42 C.R.R. 44, 7 W.C.B. (2d) 41; R. v. Romano (1915), 1915 569 (QC CA), 24 C.C.C. 30 (Que. K.B.); R. v. Stewart, 1991 11753 (ON CA), [1991] O.J. No. 81, 43 O.A.C. 109, 62 C.C.C. (3d) 289, 12 W.C.B. (2d) 20 (C.A.); R. v. Woodcock, 1996 1704 (BC CA), [1996] B.C.J. No. 1991, 81 B.C.A.C. 27, 1 C.R. (5th) 306, 32 W.C.B. (2d) 105 (C.A.); R. v. Wright, 1945 41 (SCC), [1945] S.C.R. 319, [1945] S.C.J. No. 13, [1945] 2 D.L.R. 523, 83 C.C.C. 225, 1 C.R. 43 Statutes referred to An Act further to amend the Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1 Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6) [as am.] Canadian Charter of Rights and Freedoms, ss. 7, 11(c) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)

Richard Posner, for appellant. Robert Gattrell, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The central issue on this appeal is whether Crown counsel's closing address to the jury violated the prohibition in s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 against commenting on the failure of the accused to testify.

[2] The appellant was charged with sexual assault. He did not testify. The key issues at trial were consent and the complainant's credibility. The defence position was that any sexual contact that occurred had either been consensual or based upon the appellant's reasonable belief that the complainant was consenting.

[3] In his closing address to the jury, Crown counsel stated at the outset that the jury ought not to be "mesmerized" by the concept of reasonable doubt and that "reasonable doubt" did not mean "a speculative doubt conjured up by a timid juror to escape his or her duty". Then, after twice observing that the complainant's evidence stood uncontradicted, Crown counsel stated in reference to the accused's belief in consent: "But he didn't testify, so [page367] he can't be asked directly what he thought at the time or what he construed or what he knew."

[4] For the reasons that follow, I am of the view that the Crown's closing address, read as a whole, violated both the letter and the spirit of s. 4(6) of the Canada Evidence Act and that a new trial should be ordered. Facts

[5] The complainant was a 35-year-old developmentally challenged woman who lived in a group home. After she met the appellant, they went on a few dates. On the second date, they kissed. The appellant began to touch her but she stopped him and the date ended.

[6] The complainant testified that on their third date, the appellant took her to a secluded area at a beach. He took out a blanket, and they sat down and began to kiss. The complainant testified that she was comfortable to kiss and cuddle with the appellant, but no more. The appellant, however, began to pull down her pants and touch her vagina with his fingers. She said "no" and the appellant became angry. He then put her hand on his penis. The complainant protested and the appellant chided her. A fisherman then appeared and agreed to give the appellant and complainant a ride to the street where the complainant's group home was located.

[7] The appellant and complainant then walked to a park adjacent to the group home. They eventually sat down on the blanket. The appellant began to kiss the complainant. He got on top of her and started to remove her top, pants and underwear. She repeatedly said "no" but the appellant became angry, cursed at her and continued to force himself on her. The complainant was lying on her back. Her legs were up and her pants were down when the appellant allegedly penetrated her. The complainant attempted to push the appellant off but he was too heavy. When the sexual contact ended, the appellant walked the complainant home.

[8] The complainant testified in examination-in-chief that the appellant ignored her repeated demands for him to desist in his sexual advances. However, under cross-examination she stated that when she protested, the appellant "would get off and then he would get mad at me but then he would go back and do it again". However, later she stated that it was not the case that the appellant would desist each time she said "no".

[9] The complainant explained that she went with the appellant to the park after the beach incident because she was scared, in shock and that she did not know what was going on. She agreed that the appellant did not threaten her at any time and [page368] did not force her to accompany him to the park. When asked whether she invited the appellant to cuddle with her after each time she told him to get off, the complainant responded that it was a blur and that she could not remember. The complainant's evidence that she experienced vaginal bleeding after the incident was not corroborated by the evidence of the nurse who treated her. Finally, the complainant acknowledged that she had her cellphone with her that night and that she did not call for help at any time.

[10] The appellant's DNA was found in saliva on the complainant's underpants. As previously stated, his position at trial was that sexual contact was consensual or based on his reasonable belief that the complainant was consenting.

[11] Crown counsel made the following statements in his closing address:

Do not get mesmerized by reasonable doubt, as the concept does not grow larger the more times it is actually stated . . . . Please remember that the phrase is 'reasonable doubt.' And I emphasize the word 'reasonable,' which is a real, genuine doubt on the evidence based on reason; not a speculative doubt conjured up by a timid juror to escape his or her duty.

If you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to the accused and acquit, because I have failed to satisfy you of the guilt of [the accused] beyond a reasonable doubt. . . . . .

As I've touched on already, and I'll now repeat, at the heart of your responsibility in the jury room will be the task of deciding what weight you give to [the complainant's] evidence. There is no other evidence before you, none, of an alternate version of what happened that night. Just [the complainant's]. . . . . .

I would suggest to you that there can really be no doubt that she didn't consent. The only evidence you have to hear, or the only evidence you've heard on that point, was what she told you. . . . There is no evidence before you of anything that would suggest she consented. . . . . .

You will also be told that you must decide whether I have proven that [the accused] knew she wasn't consenting. . . . . .

Now, that may present a problem, because you need to figure out what his knowledge was as to whether or not she was consenting. But he didn't testify, so he can't be asked directly what he thought at the time or what he construed or what he knew. But we can infer his state of mind. (Emphasis added) [page369] Trial judge's ruling

[12] Immediately upon the completion of the Crown's closing address, the appellant's trial counsel applied for a mistrial on the ground that the remarks in the address amounted to an invitation to the jury to draw an adverse inference from the fact that the accused did not testify, contrary to s. 4(6) of the Canada Evidence Act.

[13] The trial judge dismissed the application for a mistrial. Relying on R. v. Knox (2006), 2006 16479 (ON CA), 80 O.R. (3d) 515, [2006] O.J. No. 1976 (C.A.), he held that while the remarks of Crown counsel were "regrettable" and "objectionable", they did not go so far as to suggest to the jury that the accused's silence could be used as evidence of guilt and did not give rise to a miscarriage of justice.

[14] In the trial judge's charge to the jury, he stated:

Because accused persons are not required to prove their innocence, they are not obliged to testify or to present evidence. It is Crown counsel's job to prove the charge beyond a reasonable doubt. This rule never changes.

[15] During its deliberations, the jury asked the following questions:

In regard to making our decision:

What is the role of 1. speculation (can we fill in the gaps). 2. conclusions as to what someone was thinking 'at some time when something happened.' 3. If evidence is not sufficient -- 'incomplete' must we acquit.

[16] In response, the trial judge repeated the standard form instruction to decide the case on the evidence presented and not to speculate, as well as the standard form instruction on reasonable doubt. He then re-charged the jury on the essential elements of the offence. Analysis

[17] Section 4(6) of the Canada Evidence Act provides:

4(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

[18] This prohibition has been part of Canadian law for over a century. It was first introduced in 1906 following the 1893 reforms to the Act which made accused persons and their spouses competent witnesses for the defence: An Act further to amend the Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1. The purpose of [page370] the prohibition was described in R. v. Romano (1915), 1915 569 (QC CA), 24 C.C.C. 30 (Que. K.B.) as to prevent prosecuting counsel from supporting a weak case by exploiting the fact that the accused or his or her spouse had elected not to exercise their newly acquired right to testify. Had this "safeguard . . . not been provided, prosecuting counsel would incline . . . to say to juries: 'Here is the prisoner who knows what he has done or not done: Why does he not give his testimony?' or 'Why does his wife not give her testimony?'": Romano, at p. 31 C.C.C.

[19] More recently, in R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, Lamer C.J.C., dissenting, but not on this point, stated, at para. 36, that s. 4(6) was "originally created to ensure that neither the court nor the prosecution would draw unfair attention to the silence of the accused". Sopinka J., for the majority, at para. 97, suggested that the purpose of s. 4(6) is to prevent the trial judge and the prosecution from inviting the jury to place the failure of the accused to testify on the evidentiary scales. Section 4(6) is thus closely tied to the right of silence protected by s. 7 of the Canadian Charter of Rights and Freedoms and is consistent with the right against self-incrimination under s. 11(c): Noble, per Sopinka J.; R. v. Boss, 1988 190 (ON CA), [1988] O.J. No. 2016, 46 C.C.C. (3d) 523 (C.A.), per Cory J.A.

[20] It has been consistently held that s. 4(6) must be interpreted in light of its purpose rather than in a literal or mechanical fashion. Accordingly, the provision will not be violated where the trial judge explains to the jury that the accused has a constitutional right not to testify and that the burden of proving the case always rests with the Crown, provided the instruction is not "presented to the jury in such fashion as to suggest that . . . silence is being used as a cloak for . . . guilt": R. v. McConnell, 1968 22 (SCC), [1968] S.C.R. 802, [1968] S.C.J. No. 61, at p. 809 S.C.R.

[21] Similarly, a statement that the Crown's evidence is "not denied" or is "uncontradicted", standing alone, does not amount to comment on the accused's failure to testify. As explained by Sopinka J. in Noble, at para. 97:

[i]n such a circumstance, the judge is not instructing the jury to consider the failure of the accused to testify per se, but rather is simply instructing the jury to take note of the fact that no evidence had been led to contradict a particular point. Rather than inviting the jury to place the failure of the accused on the evidentiary scales, the judge is instructing the jury that it need not speculate about possible contradictory evidence which has not been led in evidence.

[22] Thus, in order to violate s. 4(6), there must be something more than a reference to uncontradicted evidence, something which "pointedly draws the attention of the jury to the fact that [page371] there is evidence which the accused could give and which he has failed to give": R. v. Wright, 1945 41 (SCC), [1945] S.C.R. 319, [1945] S.C.J. No. 13, at p. 324 S.C.R.

[23] It has also been held that "offhand" or "ambiguous" remarks about the need for the jury to base its conclusions on the evidence or the absence of evidence supporting the position of the defence will not violate the section, especially where the trial judge makes it clear to the jury that the burden of proof always rests upon the Crown: R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24. Such remarks neither constitute an invitation to the jury to infer guilt from silence nor cause prejudice to the accused.

[24] The Crown places particular reliance on the decision of this court in Knox, which was referred to and relied upon by the trial judge in his ruling. In Knox, the accused was charged with a number of offences arising from a collision with an officer in a stolen car. The issue was identity. The accused was found present in a field close to the scene of the collision. In the course of explaining to the jury that they were not to draw wild inferences about why he was conveniently found in this field, Crown counsel stated:

Obviously, Mr. Knox has a constitutional right not to testify. He has to prove nothing here. The onus is on the Crown the whole time, but having said that, if he chooses not to testify, then the Crown's case stands or falls on its own two feet. . . . . .

...while the defence doesn't have to call evidence, it's entitled to.

Relying on McConnell and Potvin, Laskin J.A. held that while the remarks were "close to the line", and would have been "better left unsaid", they did not go so far as to suggest that the accused was using silence as a cloak for his guilt: Knox, at para. 62.

[25] This case is different from Knox. Each case must be decided on the basis of its own facts and the impugned remarks must be considered in context and in the light of the purposive approach to the interpretation of s. 4(6). No trial, as is often said, is perfect, and we must give some latitude for the give and take of the adversarial process. However, Parliament has drawn a line that reflects a fundamental value of our criminal justice system. In cases where the cumulative effect of what Crown counsel has said "invited the jury to act upon the failure of the accused to give evidence on matters that were essential to the theory of the Crown in proof of the guilt of the accused", we find ourselves in a situation where "incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness": [page372] R. v. Woodcock, 1996 1704 (BC CA), [1996] B.C.J. No. 1991, 81 B.C.A.C. 27 (C.A.), at paras. 26-28; R. v. Stewart, 1991 11753 (ON CA), [1991] O.J. No. 81, 62 C.C.C. (3d) 289 (C.A.), at p. 320 C.C.C. The cases demonstrate that there is a limit to what can be reconciled with the statutory protection accorded to an accused person who chooses to remain silent: see, e.g., R. v. Lee, 1970 526 (ON CA), [1970] 3 O.R. 285, [1970] O.J. No. 1533, (C.A.); R. v. Miller, 1998 5115 (ON CA), [1998] O.J. No. 5356, 131 C.C.C. (3d) 141 (C.A.). We must prevent the erosion of the statutory protection of s. 4(6) and discourage prosecutors from devising clever or subtle ways to focus the jury's attention on the failure of the accused to testify.

[26] In the case at bar, the prosecutor made two references to the fact that the Crown's evidence stood uncontradicted. He stated that there was "no evidence" of an "alternative version of what happened" other than the complainant's. He then said that the only evidence regarding the issue of consent was what she had told the jury.

[27] These comments, standing alone, probably would not have violated s. 4(6) on the authorities I have mentioned. However, Crown counsel was not prepared to leave it at that and later in his closing, in reference to the accused's belief in consent, he added:

Now, that may present a problem, because you need to figure out what his knowledge was as to whether or not she was consenting. But he didn't testify, so he can't be asked directly what he thought at the time or what he construed or what he knew. (Emphasis added)

[28] The words "but he didn't testify" clearly amount to a comment on the failure of the appellant to testify within the letter of s. 4(6). But do they violate the spirit or purpose of s. 4(6)? In my view, it is clear that they do.

[29] The comment must be read in the context of the submission that there was no "alternate version" and that [the] complainant's evidence was uncontradicted. It must also be read with the submission that as the appellant did not testify, he could not be questioned. Crown counsel was pointing out to the jury not only that the accused remained silent and offered no explanation for what occurred on the night in question but also that he was not prepared to expose himself to cross- examination.

[30] The Crown's closing in this case cannot be explained away as a passing reference to the right of the accused not to testify that did not prejudice the accused. Commenting on the accused's failure to testify, as in this case, is quite different from commenting on the accused's constitutional right not to testify, as in Knox. (I add, however, that surely one can expect Crown counsel to refrain from comments indentified by this court as "close to the line" and "better left unsaid".) [page373]

[31] In my view, the comments in the case at bar cannot be excused as ambiguous or offhand. Rather, they appear to have been part of a carefully structured closing address that pointedly drew the attention of the jury to the fact that the accused did not take the stand. If the Crown's closing address did not do so explicitly, it strongly implied that the jury could and should infer that the appellant's silence and his refusal to expose himself to cross-examination were indicia of his guilt.

[32] Before us, the Crown argues that the accused's failure to testify was the "elephant in the room". It was obvious, the Crown argues, that there were only two people who could explain what occurred and the jury was bound to infer guilt from the appellant's silence. In my view, this argument does not assist the Crown. There is a clear distinction between inferences that the jury may draw from the accused's silence in the absence of a comment and the statutory right of the accused not to have the prosecutor or the judge invite the jury to place evidentiary weight on his failure to testify through a comment. As Charron J.A. observed in Miller, at para. 14:

The appellant, in choosing not to testify, can expect a jury may draw an adverse inference against him. However, by reason of the express provision under s. 4(6), he is assured that no greater weight will be placed upon his failure to testify by reason of a comment by the prosecutor or the judge.

[33] In my view, the problem caused by the comment on the failure of the accused to testify was exacerbated by the Crown's earlier reference to the "timid juror" in relation to an explanation of the concept of reasonable doubt. This court has stated that this sort of language is to be avoided as it may confuse jurors regarding the meaning of reasonable doubt: R. v. Karthiresu, 2000 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291 (C.A.). While reference to the "timid juror" standing alone may not be fatal, its use here added to the problem created by the Crown's references to the accused's failure to testify. Moreover, the reference to "timid juror" in the face of a clear warning from this court in Karthiresu, when read with the comment on the appellant's failure to testify, suggests that Crown counsel may well have been flirting with danger and deliberately testing the outer limits of what is permissible.

[34] Finally, I note that the questions from the jury indicate that they were troubled by what they perceived to be a hole in the evidence. The Crown's closing indicated that the only hole in the evidence in this case was the accused's failure to testify. Viewed in this light, the jury's questions suggest that there was a real risk that the appellant was prejudiced by the Crown's comment on his failure to testify. [page374]

[35] I am not persuaded that we should refuse to allow the appeal because the appellant's trial counsel insisted that nothing short of a mistrial was capable of curing the situation. Nor would I apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The comments of Crown counsel violated the appellant's statutory right under s. 4(6) of the Canada Evidence Act. The complainant's evidence was challenged and the Crown's case was not overwhelming. The jury's subsequent questions indicate that they may well have been concerned about the failure of the accused to testify. As I find that the Crown's closing amounted to an invitation to the jury to infer guilt from the accused's failure to testify that prejudiced the appellant's right to a fair trial, it is my view that the conviction must be set aside. Conclusion

[36] Accordingly, I would allow the appeal and order a new trial.

Appeal allowed.