Her Majesty the Queen v. Wright [Indexed as: R. v. Wright]

98 O.R. (3d) 665

Court of Appeal for Ontario,

Doherty, Feldman and MacFarland JJ.A.

August 26, 2009

Criminal law -- Defences -- Alibi -- What constitutes an alibi -- Accused charged with robbery and related offences -- Crown alleging that woman taking accused and another man to a person's apartment in response to inquiry about where to get drugs -- Occupant of apartment taking men to victim's residence at woman's request -- Police knowing identity of woman who took robbers to apartment from which they were led to victim's residence -- Woman admitting she saw occupant of apartment but not mentioning accused and refusing to co-operate further with police -- Woman not called as witness at preliminary inquiry -- Woman being only defence witness at trial and testifying that accused remaining with her while occupant of apartment led two other men to victim's residence -- Trial judge erring in characterizing accused's defence as alibi defence and in instructing jury that they could draw adverse inference from fact that alibi was not disclosed prior to trial. [page666]

The accused was charged with robbery and related offences. The chief Crown witness, MA, testified that a female acquaintance, CR, brought two men to his apartment and asked him to take them to another residence so they could buy drugs. MA took the robbers to the victim's apartment, where the two men robbed the victim. MA identified the accused as one of the two men. CR was not co-operative with the police, admitting only that she saw MA that day but not mentioning the accused. The police did not make further efforts to interview her, and she was not called as a witness at the preliminary inquiry. CR was the only defence witness at the trial. She testified that she was approached by three men, one of whom was the accused. They asked her if she knew where they could buy marijuana, and she took them to MA. The other two men went off with MA, and the accused stayed behind to talk to her. The defence first gave the Crown notice of its intention to call CR and of the substance of her evidence shortly after the trial had commenced. The trial judge characterized the accused's defence as an alibi, and in her charge to the jury, pointed out that the Crown was not given an opportunity to conduct a meaningful investigation of the validity of the alibi prior to trial. She instructed them that they could draw an adverse inference about the validity of the alibi defence from the lack of timely disclosure. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in law in characterizing the accused's defence as an alibi. The accused's position was not that he was uninvolved in the main events leading up to the offence and amounted to an admission of some involvement in the relevant events coupled with a denial of any involvement in the crimes. The prosecution knew that CR had material evidence to give concerning the accused's role in the events subsequent to their arrival at MA's apartment and specifically with the robbery. The prosecution did not need advance notice from the defence to appreciate that CR's version of events was relevant to its case against the accused. Consequently, the rationale for the adverse inference instruction did not operate. Moreover, had the accused disclosed his defence, he would have implicated himself by acknowledging his presence at the outset of the transaction with those who eventually committed the crimes. Prior disclosure of that kind of defence could well generate new theories of liability based on accessorial responsibility. To require an accused to disclose that kind of defence and thereby implicate himself in the crime, or risk an adverse inference instruction, is to impose a significant intrusion on the accused's right to silence. Despite the absence of an objection to the charge from defence counsel at trial, this was not an appropriate case for the application of the curative proviso. The case for the Crown was not overwhelming and rested largely on the out-of-court identification of the accused by MA. Aspects of that identification procedure were problematic. Furthermore, the misdirection constituted a direct and powerful blow against the defence. It was not a minor error on the periphery of the case and this was not an appropriate case for the application of the proviso.

APPEAL by the accused from the convictions for robbery and other offences returned by a jury in Toronto presided over by Low J. of the Superior Court of Justice on June 9, 2005.

Cases referred to

R. v. Hill (1995), 1995 271 (ON CA), 25 O.R. (3d) 97, [1995] O.J. No. 2360, 83 O.A.C. 99, 102 C.C.C. (3d) 469, 41 C.R. (4th) 299, 29 W.C.B. (2d) 163 (C.A.), apld

Other cases referred to

R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, 119 N.R. 321, [1990] 6 W.W.R. 554, J.E. 90-1517, 49 B.C.L.R. (2d) 299, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235, 11 W.C.B. (2d) 191; R. v. Cleghorn, 1995 63 (SCC), [1995] 3 S.C.R. 175, [1995] S.C.J. No. 73, 186 N.R. 49, J.E. 95-1789, 85 O.A.C. 129, 100 C.C.C. (3d) 393, 41 C.R. (4th) 282, 32 C.R.R. (2d) 41, 28 W.C.B. (2d) 226; [page667] R. v. Crawford (1995), 1995 138 (SCC), 22 O.R. (3d) 288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, 179 N.R. 161, J.E. 95-708, 81 O.A.C. 359, 96 C.C.C. (3d) 481, 37 C.R. (4th) 197, 27 C.R.R. (2d) 1, 26 W.C.B. (2d) 555; R. v. Hogan, 1982 3820 (ON CA), [1982] O.J. No. 189, 2 C.C.C. (3d) 557 (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. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555, [1994] S.C.J. No. 27, 113 D.L.R. (4th) 461, 165 N.R. 321, J.E. 94-648, 70 O.A.C. 161, 89 C.C.C. (3d) 289, 29 C.R. (4th) 209, 21 C.R.R. (2d) 1, 23 W.C.B. (2d) 219; R. v. Van, [2009] S.C.J. No. 22, 2009 SCC 22, 245 C.C.C. (3d) 147, EYB 2009-159382, J.E. 2009-1030, 388 N.R. 200, 65 C.R. (6th) 193, 251 O.A.C. 295

Authorities referred to

Craig, John D.R., "The Alibi Exception to the Right to Silence" (1996), 39 Crim. L.Q. 227

Gooderson, R.N., Alibi (London: Heinemann Educational Books, 1977)

Michael Dineen, for appellant. Christine Tier, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I.

[1] An accused has a constitutional right to remain silent throughout the criminal process prior to conviction. There are, however, some qualifications on that right. One arises where an accused chooses to advance an alibi defence. An accused who advances an alibi defence must make timely disclosure of the substance of that defence to the prosecution or run the risk of an adverse inference being drawn by the trier of fact from the failure to make timely disclosure.

[2] This appeal turns on whether the trial judge erred in law in characterizing the appellant's position as an alibi defence, which, absent timely disclosure, triggered an adverse inference instruction to the jury. I would hold that the trial judge did err in law and that the instruction should not have been given. The curative proviso cannot be applied despite the absence of any objection by trial counsel. The appeal must be allowed, the convictions quashed and a new trial ordered.

II.

[3] The appellant was charged with robbery and other related offences. All of the charges arose out of the same incident. [page668]

[4] The evidence is straightforward. Marlon Acosta, a 14- year-old boy and the Crown's main witness, testified that on the day of the alleged robbery, an acquaintance, Carise Reid, showed up at his apartment. She was with two male friends. Ms. Reid asked Mr. Acosta to take them to "Randy's house". Mr. Acosta understood this to be a reference to Randy Hannaford. Mr. Hannaford, a 19-year-old teenager, lived nearby in the same housing complex. Mr. Acosta later identified the appellant in a photo line-up as one of the two young men who arrived at his apartment with Ms. Reid.

[5] Mr. Acosta agreed to take the two young men to Mr. Hannaford's apartment. Ms. Reid remained behind. Mr. Acosta testified that when he and the two other men arrived at Mr. Hannaford's apartment, they pushed him into the apartment. The appellant struck Mr. Hannaford on the head with a handgun. The appellant's companion forced Mr. Acosta into the bathroom. Mr. Hannaford was pushed into the bathroom a short time later. He was very angry and attacked Mr. Acosta. Mr. Acosta and Mr. Hannaford remained in the bathroom until they heard the appellant and his companion leave Mr. Hannaford's apartment. They left the bathroom a short time later.

[6] Mr. Hannaford testified for the Crown. He had been struck in the head several times during the robbery and purported to have virtually no recollection of the relevant events. He had been unable to identify the appellant in a photo line-up. He testified that the robbers stole some clothing, a video game system and about $20.

[7] Ms. Reid was the only defence witness. She testified that on the day of the robbery, she was approached by three young men, one of whom was the appellant. She did not know these young men, but they asked her if she knew where they could buy some marijuana.

[8] Ms. Reid took the three young men to see Mr. Acosta, whom she knew from prior experience to be a marijuana smoker. Mr. Acosta spoke to his supplier on the telephone and then indicated that if the young men gave him their money, he would make the marijuana purchase for them. The young men declined this offer and insisted that they go with Mr. Acosta to see his supplier and purchase the marijuana.

[9] Ms. Reid testified that Mr. Acosta and two of the young men she was with headed off to purchase the marijuana. She and the appellant remained behind in the vicinity of Mr. Acosta's apartment. They chatted for about 15 minutes. The appellant tried to convince Ms. Reid to go out with him. [page669]

[10] Ms. Reid saw Mr. Acosta return about 20 minutes after he had left. His face was bruised and he had blood on his shirt. Ms. Reid tried to speak with him, but Mr. Acosta was angry and refused to talk with her. Ms. Reid later learned that Mr. Acosta had been robbed and beaten.

[11] The police became aware of Ms. Reid's involvement in the relevant events shortly after the robbery occurred. Two officers attempted to interview her at her home about a week after the robbery. Ms. Reid's mother was very antagonistic toward the police. She insisted that they leave her home. Ms. Reid did not want to get involved in the police investigation. She told the police that she had seen Mr. Acosta on the day in question but offered no further assistance. She did not say anything about the appellant. The police did not make further efforts to interview Ms. Reid. She was not called as a witness at the preliminary inquiry.

[12] Ms. Reid indicated that she was aware the appellant wanted her to testify for him some time before the trial. She was reluctant to do so but eventually agreed to assist him. It would appear, however, that she attended at the trial in response to a Crown subpoena. Ms. Reid first spoke to the appellant's counsel when she attended at the trial.

[13] The defence first gave the Crown notice of its intention to call Ms. Reid and of the substance of her evidence shortly after the trial had commenced, about two years after the relevant events. At the conclusion of the evidence, Crown counsel requested an adverse inference instruction based on the failure to make timely disclosure of what the Crown characterized as an alibi defence. Defence counsel took no exception to this request.

[14] The trial judge in the course of a balanced and well- crafted jury instruction told the jury:

In this case, the defence alibi was raised for the first time last Wednesday, June the 1st, 2005. Prior to that, no notice of this defence was given to the prosecution. Accordingly, the Crown has not been given an opportunity to conduct a meaningful investigation of the validity of the alibi defence prior to trial.

You may consider the fact that the defence was raised for the first time only one week ago in assessing the weight of the evidence, and you may but you do not have to draw an adverse inference about its validity, and you may, but you do not have to disregard it. (Emphasis added)

[15] She repeated the adverse inference instruction as part of her response to a jury question. The jury returned its verdict about eight minutes after the recharge. [page670]

[16] Defence counsel did not object to the adverse inference instruction either before the initial charge to the jury or in response to the jury's question. It is fair to say that defence counsel implicitly accepted the appropriateness of the instruction.

III.

[17] The criminal process is both accusatorial and adversarial. Respect for individual autonomy and privacy dictates that when the prosecution levels a criminal accusation, it must investigate and prove its case without any compelled assistance from the target of that accusation. The constitutional right to silence, the constitutional protection against self-incrimination and the constitutionally protected presumption of innocence all reflect the fundamental importance of the principle protecting an accused from conscription to the cause of the prosecution. An accused is constitutionally entitled to say "prove it" and nothing more in answer to a criminal charge. For convenience, I will refer to this constellation of constitutional rights as the right to silence: see R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, 114 C.C.C. (3d) 385; R. v. Cleghorn, 1995 63 (SCC), [1995] 3 S.C.R. 175, [1995] S.C.J. No. 73, 100 C.C.C. (3d) 393, per Iacobucci J., at para. 4, per Major J. (dissenting on another point), at paras. 20-23; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, 59 C.C.C. (3d) 321, at pp. 1316-17 S.C.R., p. 341 C.C.C.

[18] There are qualifications on the accused's right to silence. One such qualification arises where an accused advances an alibi defence. If the accused fails to make timely disclosure to the prosecution of the substance of the alibi (or fails to testify in support of the alibi), the trier of fact may, not must, draw an adverse inference against the defence from that failure: R. v. Noble, at para. 111; R. v. Cleghorn; R. v. Crawford (1995), 1995 138 (SCC), 22 O.R. (3d) 288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30, 96 C.C.C. (3d) 481, at pp. 494-95 C.C.C.; R. v. Chambers, at pp. 1318-19 S.C.R., p. 343 C.C.C.; R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555, [1994] S.C.J. No. 27, 89 C.C.C. (3d) 289, at pp. 577-79 S.C.R., pp. 304-305 C.C.C.; R. v. Hill (1995), 1995 271 (ON CA), 25 O.R. (3d) 97, [1995] O.J. No. 2360, 102 C.C.C. (3d) 469 (C.A.), at pp. 102-104 O.R., pp. 476-77 C.C.C.

[19] The qualification on the right to silence that arises where alibi is raised is said to be a rule of "expediency" borne out of the nature of the alibi defence. The word "alibi" means "elsewhere". Where an accused advances an alibi defence, he claims that as he was elsewhere he could not have committed the crime alleged. The alibi defence moves the factual focus from the facts alleged by the Crown to an entirely different factual scenario. But for the alibi defence, the factual scenario introduced by the [page671] alibi has no relevance to the Crown's allegation. In the normal course, the Crown would have no way of knowing that the facts introduced by the alibi claim had relevance to the charge. As R.N. Gooderson put it in his text, Alibi (London: Heinemann Educational Books, 1977), at p. 30, cited with approval by Major J. in Cleghorn, at para. 22:

Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives a defence a fresh and untrammelled start. It is easy to prepare perjured evidence to support it in advance.

[20] The common law has responded to the risk of fabrication and the Crown's inability to effectively challenge alibi defences revealed long after the relevant events occurred by permitting the trier of fact to draw an adverse inference against the veracity of those defences. The constitutionality of this qualification on the right to silence has been accepted in this court and is not challenged on this appeal: see R. v. Hill, at pp. 103-104 O.R., p. 477 C.C.C. [See Note 1 below] One cannot, however, lose sight of the fact that the adverse inference instruction is a qualification on constitutionally enshrined principles. The qualification can be justified only where the rationale for that qualification actually operates. Thus, if the alibi defence is disclosed in time to permit meaningful investigation of the defence, there can be no justification for the instruction: see R. v. Hogan, 1982 3820 (ON CA), [1982] O.J. No. 189, 2 C.C.C. (3d) 557 (C.A.), at p. 566 C.C.C.; Cleghorn, at paras. 3-5.

[21] There is no suggestion in this case that timely disclosure was made. The question is -- did the Crown require that disclosure to be in a position to effectively investigate and respond to the defence actually advanced by the appellant? I do not think that it did.

[22] The appellant's defence, as advanced through Ms. Reid, was not based on facts extraneous to the facts as alleged by the Crown. To use the language adopted in Cleghorn, at para. 22, the appellant's defence was not "entirely divorced from the main factual issues surrounding the corpus delicti". The defence was an admission of some involvement in the relevant events coupled with a denial of any involvement in the crimes.

[23] The appellant's defence came from Ms. Reid, a person who on the Crown's version was directly involved in the events leading up to the crime. On the Crown's evidence, the appellant arrived at Mr. Acosta's apartment with Ms. Reid. The prosecution clearly [page672] knew that Ms. Reid had material evidence to give concerning what, if anything, the appellant had to do with the events subsequent to their arrival at Mr. Acosta's apartment and specifically with the robbery. The prosecution did not need advance notice from the defence to appreciate that Ms. Reid's version of events was relevant to its case against the appellant. Indeed, the police attempted, albeit unsuccessfully, to obtain her version of events. It cannot be said that without advance notice from the defence the prosecution had no reason or opportunity to explore Ms. Reid's version of the relevant events. Consequently, the rationale for the adverse inference instruction does not operate in this case.

[24] There is a second way of looking at the nature of the appellant's defence that also leads to the conclusion that it is improperly characterized as an alibi defence. An alibi claim places an accused elsewhere and does not implicate the accused in any way in the crime with which he or she is charged. Had the appellant disclosed his defence, he would have implicated himself by acknowledging his presence at the outset of the transaction with those who eventually committed the crimes. Prior disclosure of this kind of defence could well generate new theories of liability based on accessorial responsibility. To require an accused to disclose this kind of defence and thereby implicate himself in the crime, or risk an adverse inference instruction, is to impose a significant intrusion on the accused's right to silence. [See Note 2 below]

IV.

[25] The trial judge erred in giving the adverse inference instruction. The Crown submits that the error occasioned no substantial wrong or miscarriage of justice. The Crown contends that the prosecution's case was strong and that Ms. Reid's evidence was inherently incredible.

[26] I would not apply the curative proviso. This was not an overwhelming case for the Crown. That case rested largely on the out-of-court identification of the appellant made by Mr. Acosta. Aspects of that identification procedure were problematic. [page673] Furthermore, the misdirection constituted a direct and powerful blow against the defence. This was no minor error on the periphery of the case.

[27] The Crown placed considerable emphasis on the defence position at trial. Defence counsel (not Mr. Dineen) accepted the correctness of the instruction now challenged. The defence position at trial is an important consideration when determining the application of the curative proviso. That position may reflect on the significance of the error or may represent a tactical choice made by counsel. However, counsel's position at trial is not determinative of the application of the proviso: see R. v. Van, [2009] S.C.J. No. 22, 2009 SCC 22, at para. 43.

[28] There could have been no tactical reason behind counsel's position that an adverse inference instruction was appropriate. That instruction could not possibly have assisted the defence. On any view, the defence was better off without it. Trial counsel must have thought that the law required the instruction.

[29] The present case has much in common with the facts in R. v. Hill, also a case where a defence was improperly characterized as an alibi defence and an adverse inference instruction was given. In Hill, there was also no objection to that instruction. I would adopt the reasoning of my colleague, Laskin J.A., at pp. 105-106 O.R., pp. 479-80 C.C.C., for rejecting the argument that the curative proviso could be applied to the error.

V.

[30] I would allow the appeal, set aside the convictions and order a new trial.

Appeal allowed.

Notes

[See Note 1 below] The constitutional arguments are put forward by John D.R. Craig, "The Alibi Exception to the Right to Silence" (1996), 39 Crim. L.Q. 227.

[See Note 2 below] The implications of the broad notion of alibi advanced by the Crown are troubling. For example, if an accused claimed that he and a friend remained in a vehicle while, unbeknownst to them, a third friend went inside and robbed a convenience store, that accused would, on the Crown's approach, be advancing an alibi defence requiring prior notice or the risk of an adverse inference instruction. The risk of an adverse inference instruction absent disclosure of that kind of defence would, in my view, be a substantial intrusion on the right to silence.