CITATION: R. v. Rohde, 2009 ONCA 463
DATE: 20090604
DOCKET: C47321
COURT OF APPEAL FOR ONTARIO
Laskin, Blair and Lang JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ryan Rohde
Appellant
Leo Adler, for the appellant
Brad Greenshields, for the respondent
Heard: April 29, 2009
On appeal from the conviction entered on May 1, 2007, and the sentence imposed on July 25, 2007, by Justice Lauren E. Marshall of the Ontario Court of Justice.
Laskin J.A.:
A. INTRODUCTION
[1] The question on this appeal is whether the trial judge erred by using the accused’s silence as a basis to find his evidence not credible.
[2] The appellant, Ryan Rohde, lived alone in a small one-bedroom condominium, which he owned. One weekend in April 2006, he went away for a few days. While he was away water leaked into his condominium unit, causing extensive flooding. The superintendent of the building fixed the leak and arranged for a cleaning crew to clean up the unit. During the clean up, the crew discovered an unloaded sawed-off shotgun under Mr. Rohde’s bed. Mr. Rohde was arrested upon his return to the condominium.
[3] Mr. Rohde was charged with possession of an unlicensed firearm and careless storage of a firearm. He was tried a year later, and pleaded not guilty. He testified that the gun was not his and that he did not know where it had come from. He said that an acquaintance had used his condominium shortly before the leak occurred.
[4] The trial judge found Mr. Rohde guilty and imposed a four-month conditional sentence. In her reasons for conviction, the trial judge rejected Mr. Rohde’s evidence as incredible because he did not come forward earlier with his explanation that someone else had been in his condominium unit.
[5] Mr. Rohde’s main argument on his conviction appeal is that in rejecting his evidence the trial judge infringed his constitutional right to silence. I agree with this argument, and for that reason would allow Mr. Rohde’s appeal and order a new trial.
B. MR. ROHDE’S EXPLANATION
[6] In the year leading up to the trial, Mr. Rohde offered no explanation for how the shotgun got under his bed. At trial, however, he explained that John Ahmae, whom he knew from playing in a men’s basketball league at the YMCA, had asked to stay at his condominium for a week. According to Mr. Rohde, Mr. Ahmae had just broken up with his girlfriend and was moving into a new place. He was looking for somewhere to stay until his new place was ready. Mr. Rohde allowed Mr. Ahmae to stay at his condominium and gave him the keys.
[7] Mr. Rohde testified that he tried to telephone Mr. Ahmae but his phone seemed to have been turned off and he had no answering machine. Mr. Rohde said he never heard from Mr. Ahmae again. In Mr. Rohde’s words, “he disappeared into thin air.”
C. THE TRIAL JUDGE’S REASONS
[8] The shotgun was unlicensed. To prove Mr. Rohde guilty of possession of it, the Crown had to prove both knowledge and control. The trial judge correctly recognized that the Crown had a strong case on possession – in her words, the Crown had “nailed it down four squared.” The gun was found under Mr. Rohde’s bed in a condominium unit that he alone owned and occupied.
[9] However, Mr. Rohde provided an exculpatory explanation for the gun. The trial judge had to decide whether Mr. Rohde’s explanation raised a reasonable doubt about his guilt. She held that it did not.
[10] She characterized Mr. Rohde’s explanation as “almost the equivalent of an alibi, I was not there and I did not do it and this guy was there.” She then rejected his explanation principally because he never told the police or anyone else about it. No one, therefore, had an opportunity to investigate Mr. Rohde’s story.
[11] The following passages from the trial judge’s brief reasons are the basis for her rejection of Mr. Rohde’s evidence:
Now, Mr. Rohde comes here today and says: “I gave my keys to my friend John, but he is not really a friend. He fixed my car a couple of times. We played basketball together. I had known him for one and a half to two years. My only contact was a phone number.
Oh, by the way, I did not mention anything to the police about this and I asked around about this, but nobody I asked around about it is here today. And when his phone number did not work, I asked my friends and just did not take any other steps.” Those steps of his have to be assessed in what a reasonably prudent person in this circumstance might do.
And:
If you loan your home to someone you happen to know, and are arrested for a sawed-off shotgun, I find that the steps that Mr. Rohde says that he took to attempt to locate this John or identify him do not make any rational or reasonable sense to me. It just does not hold together. It is almost the equivalent of an alibi, I was not there and I did not do it and this guy was there.
Usually, in those circumstances, if you were going to say it was X, but you cannot locate him, somebody must be given the opportunity to investigate that story and for this man to come in here a couple of years later while it was a guy named John and that is all I know about it, please believe me, it does not have the ring of truth or reality to it.
For those reasons, I do not accept his evidence in that regard.
D. DISCUSSION
[12] Mr. Rohde submits that the trial judge erred by using his silence – his failure to tell his story to the police – as the basis for rejecting his evidence. As I have said, I agree with this submission. In my view, the trial judge erred because she assessed Mr. Rohde’s credibility as if he had put forward an alibi defence when he had not done so.
[13] A person accused of a crime has a constitutional right to silence under s. 7 of the Charter. An accused is entitled to exercise that right when subjected to the coercive power of the state. Thus, the right generally comes into effect on an accused’s arrest, charge or detention. See R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151.
[14] The accused’s pre-trial right to silence has important implications at trial. Ordinarily, an accused’s decision to exercise the right to silence should not be used at trial as probative of an accused’s guilt or as a basis for rejecting the accused’s evidence. To do so would undermine the right. As Cory J. said in R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1316, “it would be a snare and a delusion” to say that the accused has a right to silence, yet use that silence to find the accused guilty.
[15] However, the principle from Chambers has limited exceptions. One exception is the defence of alibi. If an accused does not adequately disclose an alibi defence early enough to allow the police to investigate it before trial, then the trier of fact may infer that the accused’s defence is not credible. See R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874.
[16] Although the trial judge seemed to appreciate that Mr. Rohde had not put forward an alibi defence – she said it as “almost the equivalent of an alibi” – she nonetheless treated Mr. Rohde’s explanation as if it were an alibi. She discounted his explanation – indeed, rejected it entirely – because he had not disclosed it to the police so they could investigate it.
[17] Unquestionably, Mr. Rohde’s defence was not alibi. An alibi defence is a defence that says that the accused was elsewhere when the crime took place. If accepted, or if it raises a reasonable doubt, an alibi is determinative of the accused’s innocence. See R. v. Hill (1995), 1995 CanLII 271 (ON CA), 25 O.R. (3d) 97. However, that Mr. Rohde was elsewhere when the shotgun was found under his bed would not exonerate him. The issue in the case was not alibi but whether Mr. Rohde had the required knowledge and control over the shotgun to be in possession of it.
[18] A trier of fact is not justified in applying the principles for assessing an accused’s credibility where the defence is alibi to a case where the defence is not alibi. By linking her rejection of Mr. Rohde’s evidence to his pre-trial silence, the trial judge committed a reversible error. She violated his constitutional right not to say anything.
[19] Recently, in R. v. Palmer, 2008 ONCA 797, this court adopted a similar view. The accused, Ms. Palmer, had been charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. At trial, she gave an exculpatory explanation for her possession of the cocaine. In rejecting her explanation, the trial judge said:
This is not a case of the Court being critical of someone not speaking. That of course is their inalienable right not to speak to police, but having chosen to do so, she failed to avail herself of the opportunity to offer an explanation which she now advances was so simple and obvious to give.
In my view, that failure to do so serves to diminish any weight to be given to her explanation now offered and her explanation is rejected based on these reasons. Having rejected her evidence, neither am I left in any doubt by it when considered together with the evidence as a whole.
[20] This court held, at para. 9, that the trial judge erred by using Ms. Palmer’s silence to reject her evidence:
It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to use that finding in assessing the appellant’s overall credibility. However, the trial judge went further and used the appellant’s silence as a basis for finding her incredible. That he was not entitled to do.
[21] Our court set aside Ms. Palmer’s conviction and ordered a new trial. Similarly, in the present case, I would set aside Mr. Rohde’s conviction and order a new trial.
RELEASED: June 4, 2009 “John Laskin J.A.”
“JL” “I agree R.A. Blair J.A.”
“I agree Susan E. Lang J.A.”