Her Majesty the Queen v. Prokofiew, 2010 ONCA 423

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

100 O.R. (3d) 401

2010 ONCA 423

Court of Appeal for Ontario,

Doherty, Feldman, MacPherson, Blair and Juriansz

JJ.A.

June 10, 2010

Charter of Rights and Freedoms -- Trial within reasonable time -- Sixty-three month delay between arrest and trial not violating s. 11(b) of Charter -- Trial last to proceed of three related complex fraud prosecutions -- Accused charged in two of cases and agreeing to order in which cases proceeded -- No basis existing to criticize Crown for order in which it chose to prosecute cases or for manner in which individual charges made their way through process -- Canadian Charter of Rights and Freedoms, s. 11(b).

Criminal law -- Charge to jury -- Accused's failure to testify -- Counsel for co-accused commenting on accused's failure to testify at trial -- Trial judge mistakenly believing that s. 4(6) of Canada Evidence Act prohibited him from instructing jury that it could not use accused's silence at trial against him -- Accused's appeal from conviction dismissed -- Jury would have understood from entirety of instructions that accused's silence at trial could not be used to infer his guilt -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6).

Criminal law -- Sentence -- Fraud -- Accused convicted of conspiracy to defraud Government of Canada and defrauding Government of Canada of over $3 million -- Accused prime mover in scheme -- Sentence of three years' imprisonment affirmed on appeal.

Courts -- Stare decisis -- Statements in two Supreme Court of Canada cases that s. 4(6) of Canada Evidence Act prohibits trial judge from instructing jury that it cannot use accused's silence at trial against him being in direct conflict with ratio decidendi of earlier Supreme Court of Canada cases -- Later Supreme Court of Canada not having questioned correctness of those earlier cases -- Statements in later decisions peripheral to reasoning in two cases in question and non-binding obiter dicta -- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6).

The accused and a co-accused were charged with conspiracy to defraud the Government of Canada and defrauding the Government of Canada of over $3 million. The accused was charged in two of three related prosecutions for fraud. It was agreed that the charges could not be tried together and the accused consented to the order in which the cases were tried. Sixty-three months elapsed between charges being laid in and the start of this, the third in the series of three trials. The accused moved for a stay of proceedings, arguing that his s. 11(b) right under the Canadian Charter of Rights and Freedoms to a trial within a reasonable time had been violated. The judge dismissed the application. The co-accused testified at trial; the accused did not. In his closing address to the jury, counsel for the co- accused commented on the accused's failure to testify. The trial judge believed that s. 4(6) of the Canada Evidence Act precluded him from telling the jury that it could not use the accu sed's silence at trial against him. He made no specific reference to the accused's failure to testify in his instructions. The accused was convicted and sentenced to three years' imprisonment. He appealed the conviction and the sentence. [page402]

Held, the appeal should be dismissed.

The delay of 63 months between the accused's arrest and the trial did not violate s. 11(b) of the Charter. The trial was the last to proceed of three complicated and interrelated fraud trials. In the second trial, in which the accused was also charged, his counsel was unavailable for earlier dates that were offered. There was no basis to criticize the Crown for the order in which it chose to prosecute the cases or for the manner in which the individual charges made their way through the process. The accused was offered trial dates in this case within four months of the second trial ending.

Section 4(6) of the Canada Evidence Act does not prohibit a trial judge from instructing the jury that it cannot use the accused's silence at trial as evidence of guilt. Statements to the contrary in the Supreme Court of Canada's decisions in R. v. Crawford and R. v. Noble are non-binding obiter dicta. Stare decisis demands compliance not only with the ratio decidendi, but also with some of the obiter from the Supreme Court of Canada. However, some obiter dicta are non-binding. There are three reasons for characterizing the obiter statements in Noble and Crawford as non-binding. First, there is a clear conflict between the obiter dicta in Crawford and Noble and the ratio decidendi of prior Supreme Court of Canada decisions, the correctness of which has not been questioned by that court. Second, the obiter dicta in Crawford and Noble[cf

1] play a peripheral role in the reasoning in those cases. Third, the interpretation of s. 4(6) in the earlier Supreme Court of Canada cases promotes the effective exercise of the constitutional rights to silence and the presumption of innocence as recognized in Noble.

Despite the trial judge's error, the jury would have understood from the entirety of the instructions that the Crown could prove the accused's guilt based only on the evidence, and that the accused's silence at trial -- or any other non- evidentiary matter -- could not be used to infer his guilt.

The accused was the prime mover in a massive fraud against the Government of Canada which caused actual losses to Canada exceeding $3 million. Tax frauds on the public purse undermine the fiscal viability of a country and must be treated as serious crimes meriting denunciatory sentences. Three years was well within the appropriate range for this kind of offence even if one were to consider the accused a first offender.

APPEAL from the conviction entered by Corbett J. of the Superior Court of Justice, sitting with a jury, on January 8, 2005 and from sentence, [2005] O.J. No. 1824, [2005] G.S.T.C. 135 (S.C.J.).

Cases referred to R. v. Avon, 1971 133 (SCC), [1971] S.C.R. 650, [1971] S.C.J. No. 60, 21 D.L.R. (3d) 442, 4 C.C.C. (2d) 357; R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, 260 D.L.R. (4th) 411, 342 N.R. 259, [2006] 4 W.W.R. 605, J.E. 2006-62, 376 A.R. 1, 219 B.C.A.C. 1, 49 B.C.L.R. (4th) 1, 202 C.C.C. (3d) 449, 33 C.R. (6th) 215, 136 C.R.R. (2d) 121, 67 W.C.B. (2d) 809, EYB 2005-98899; 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, folld 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. 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, consd Other cases referred to R. v. Assoun, [2006] N.S.J. No. 154, 2006 NSCA 47, 244 N.S.R. (2d) 96, 207 C.C.C. (3d) 372, 70 W.C.B. (2d) 369; R. v. Baldwin, 2004 48158 (ON CA), [2004] O.J. No. 5143, 193 O.A.C. 55, 192 C.C.C. (3d) 165, 66 W.C.B. (2d) 388 (C.A.); [page403] R. v. Biladeau (2008), 93 O.R. (3d) 365, [2008] O.J. No. 4974, 2008 ONCA 833, 241 C.C.C. (3d) 374, 63 C.R. (6th) 187, 244 O.A.C. 66; 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. Bush, [2001] B.C.J. No. 2020, 2001 BCCA 447, 158 B.C.A.C. 55, 159 C.C.C. (3d) 161, 51 W.C.B. (2d) 311; R. v. C. (R.C.), 1996 5623 (NS CA), [1996] N.S.J. No. 198, 151 N.S.R. (2d) 34, 107 C.C.C. (3d) 362, 31 W.C.B. (2d) 141 (C.A.); R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 133 O.A.C. 201, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203, 46 W.C.B. (2d) 301 (C.A.); 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.); 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. Naglik, 1993 64 (SCC), [1993] 3 S.C.R. 122, [1993] S.C.J. No. 92, 105 D.L.R. (4th) 712, 157 N.R. 161, J.E. 93-1580, 65 O.A.C. 161, 83 C.C.C. (3d) 526, 23 C.R. (4th) 335, 17 C.R.R. (2d) 58, 20 W.C.B. (2d) 440, revg on other grounds (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385, [1991] O.J. No. 789, 46 O.A.C. 81, 65 C.C.C. (3d) 272, 13 W.C.B. (2d) 112 (C.A.); R. v. Oliver, 2005 3582 (ON CA), [2005] O.J. No. 596, 194 O.A.C. 284, 194 C.C.C. (3d) 92, 28 C.R. (6th) 298, 127 C.R.R. (2d) 215, 63 W.C.B. (2d) 511 (C.A.); R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 188 O.A.C. 37, 187 C.C.C. (3d) 213, 23 C.R. (6th) 98 (C.A.); 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. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, 66 D.L.R. (3d) 418, 8 N.R. 235, 28 C.C.C. (2d) 81, 34 C.R.N.S. 309 Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6) Authorities referred to Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Toronto: Carswell, 1982) Stewart, Hamish, "Nothing Can Come of Nothing: Three Implications of Noble" (1999), 42 Crim. L.Q. 286

Russell Silverstein and Ingrid Grant, for appellant. Ivan S. Bloom, Q.C., Lisa Csele and Ghazala Zaman, for respondent.

The judgment of the court was delivered by

I Overview

[1] Section 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 prohibits a trial judge or Crown counsel from commenting [page404] on an accused's failure to testify. The interpretation of that provision gives rise to three questions on this appeal: -- Does s. 4(6) prohibit a trial judge from instructing a jury that it cannot use an accused's silence at trial as evidence of guilt? -- If s. 4(6) does preclude that instruction, is the section unconstitutional and of no force and effect? -- If s. 4(6) does not preclude that instruction, did the trial judge's failure to give that instruction in this case constitute reversible error?

[2] The trial judge, relying on R. v. Crawford (1995), 1995 138 (SCC), 22 O.R. (3d) 288, [1995] 1 S.C.R. 858, [1995] S.C.J. No. 30 and R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874, [1997] S.C.J. No. 40, concluded that s. 4(6) prohibited him from telling the jury that it could not use the accused's silence at trial as evidence against him. The trial judge made it clear that, but for his understanding of the prohibition in s. 4(6), he would have given that instruction to counteract certain comments made by counsel for the co-accused in his closing address. The jury convicted the appellant and his co-accused. The co-accused has not appealed.

[3] Counsel for the appellant and Crown counsel agree that the comments in Crawford and Noble relied on by the trial judge are obiter dicta and not binding on this court. Counsel further agree that s. 4(6), properly interpreted, and as interpreted by the Supreme Court of Canada in at least three decisions prior to Crawford and Noble, does not preclude a trial judge from telling a jury that it cannot use an accused's silence at trial against him. The appellant goes on to argue that the trial judge's failure to give that instruction constitutes reversible error. In making this submission, counsel places heavy reliance on the trial judge's statement that, had he thought that s. 4(6) permitted the instruction, he would have told the jury that it could not use the appellant's silence at trial as evidence of guilt. The Crown submits that, while the trial judge could have given the instruction sought by the appellant, the absence of that instruction, when considere d in light of the entire charge to the jury, did not compromise the verdict.

[4] In the alternative, the appellant argues that s. 4(6) is unconstitutional if the statements in Crawford and Noble are binding and the trial judge correctly held that he could not tell the jury that it could not use the accused's silence against him. This court has previously held that s. 4(6) is constitutional: R. v. Boss, 1988 190 (ON CA), [1988] O.J. No. 2016, 46 C.C.C. (3d) 523 (C.A.). As [page405] the constitutional argument could be accepted only if Boss is overruled, a five-judge panel heard this appeal.

[5] In addition to the issues surrounding s. 4(6) of the Canada Evidence Act, the appellant raises two further grounds on his appeal from conviction. He also appeals against sentence. Finally, the appellant raises issues arising out of delays in the perfection of the appeal which, the appellant contends, are attributable to the Crown and have caused prejudice to the appellant. The delays are relevant only to remedy, should this court decide that the appeal should succeed and the convictions should be quashed.

[6] I would dismiss the conviction appeal. I agree with counsel for the appellant and Crown counsel that s. 4(6) does not prohibit an instruction to the jury that an accused's failure to testify cannot be used against that accused. So interpreted, s. 4(6) is constitutional. I agree with the Crown that the trial judge's instructions to the jury, considered as a whole, were adequate despite the absence of any specific reference to the appellant's right not to testify. There is no merit to the other grounds raised on the conviction appeal, and I will address them only very briefly at the end of these reasons.

[7] I would also dismiss the sentence appeal. The three-year sentence imposed was fit given the nature of the fraud and the appellant's central role in its commission.

II The Trial Proceedings

[8] The appellant and his co-accused, Peter Solty, were charged with one count of conspiracy to defraud the Government of Canada and one count of defrauding the Government of Canada of about $3.25 million. The Crown alleged that both accused participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate Harmonized Sales Tax ("HST") that was then not remitted to the federal government as required. The fraudulent nature of the scheme was never challenged. The involvement of the appellant and Mr. Solty in the scheme was also conceded. The question for the jury was whether either or both accused were aware of the fraudulent nature of the scheme.

[9] It is unnecessary to summarize the evidence or describe the scheme in any detail. There was direct evidence from Andrew Tulloch, a participant in the scheme, detailing the appellant's role as the principal architect of the scheme. There was also a great deal of documentary evidence implicating the appellant. [page406]

[10] The co-accused, Mr. Solty, testified. It was his contention that he was duped into participating in the fraudulent scheme by the appellant. He insisted that he was unaware of the fraudulent nature of the scheme devised and orchestrated by the appellant. Counsel for the appellant challenged Mr. Solty's credibility. He sought to demonstrate that Mr. Solty had a strong animus toward the appellant, in part because Mr. Solty's wife had left Mr. Solty and was living with the appellant.

[11] In his address to the jury, counsel for Mr. Solty drew the jury's attention to the fact that his client had testified and the appellant had not. Counsel put it this way:

It's clear that Mr. Solty never ran and ever tried to hide from his involvement in this case . . . And when it came to his turn to tell his side of the story, he did not, like Ewaryst Prokofiew, shirk from that challenge. And why did he do all this? Especially when there was absent no obligation [sic] for him to do anything? Because, I suggest, he had nothing to hide. Because he's innocent. Innocent people don't make themselves scarce when the troubles begin. . . . . .

Lastly, Peter Solty took the stand and told his story, warts and all. Ewaryst Prokofiew did not. Mr. Solty accused him of massive monetary fraud, and backed up that accusation with the hand-written invoices and other documentation that he provided to the police. What was Mr. Prokofiew's response? Ask yourself why Ewaryst Prokofiew did not testify. Did he have something to hide or did he simply have no response that could help him since there is no point in trying to contradict the truth?

[12] Counsel for Mr. Solty was entitled to comment on the appellant's failure to testify. [See Note 1 below] Section 4(6) has no application to counsel for a co-accused: Crawford, at para. 24; R. v. Naglik (1991), 1991 2702 (ON CA), 3 O.R. (3d) 385, [1991] O.J. No. 789, 65 C.C.C. (3d) 272 (C.A.), at pp. 281-85 C.C.C., revd on other grounds 1993 64 (SCC), [1993] 3 S.C.R. 122, [1993] S.C.J. No. 92; R. v. Oliver, 2005 3582 (ON CA), [2005] O.J. No. 596, 194 C.C.C. (3d) 92 (C.A.), at para. 65; R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 187 C.C.C. (3d) 213 (C.A.), at para. 149.

[13] The trial judge was concerned that the comments made by counsel for Mr. Solty could undermine the appellant's right to [page407] a fair trial by encouraging the jury to infer the appellant's guilt from his failure to testify. The trial judge proposed to make it clear to the jury that the appellant's silence at trial could not be used in that way. However, after hearing submissions from counsel and reviewing Crawford and Noble, the trial judge concluded that s. 4(6) precluded him from telling the jury that it could not use the appellant's silence at trial as evidence against him. The trial judge made no specific reference to the appellant's failure to testify in his instructions.

III The Interpretation of [Section 4(6)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html) of the [Canada Evidence Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html)

[14] Section 4(6) reads:

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.

[15] Read literally, the word "comment" in s. 4(6) could include a reference of any kind to the fact that an accused did not testify. The section was read that way in Crawford and Noble. In Crawford, at para. 22, Sopinka J., in describing the right to silence at trial, indicated:

[T]he matter has been complicated by the specific statutory provision in s. 4(6) of the Canada Evidence Act which forbids the trial judge and Crown counsel from commenting on the failure of the accused to testify. This encompasses both comment prejudicial to the accused, as well as a direction that the jury must not draw an unfavourable conclusion from the accused's failure to testify. (Emphasis added)

[16] Sopinka J. used similar language when speaking for the majority in Noble, at para. 95, two years later:

Section 4(6), whose validity is not in issue in the present case, prevents a trial judge from commenting on the silence of the accused. The trial judge is therefore prevented from instructing the jury on the impermissibility of using silence to take the case against the accused to one that proves guilt beyond a reasonable doubt. (Emphasis added)

[17] The observations as to the scope of s. 4(6) did not form part of the ratio decidendi in either Crawford or Noble. Crawford addressed the extent to which an accused could cross- examine his co-accused on the co-accused's failure to make a statement to the police and the instruction that a trial judge should give in the face of that cross-examination. Noble, which involved a single accused tried by judge alone, considered [page408] whether a trier of fact was entitled to use an accused's failure to testify as a "make-weight" when deciding whether the Crown had met its burden of proof.

[18] Characterization of the comments concerning s. 4(6) in Crawford and Noble as obiter dicta does not, however, determine whether those comments are binding on this court. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, Binnie J., writing for a unanimous court, recognized that stare decisis commands compliance not only with the ratio decidendi, but some of the obiter from the Supreme Court of Canada. He put it in these terms, at para. 57:

All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" . . . . The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience. (Emphasis added)

[19] The question then becomes the following: how does one distinguish between binding obiter in a Supreme Court of Canada judgment and non-binding obiter? In Henry, at para. 53, Binnie J. explains that one must ask, "What does the case actually decide?" Some cases decide only a narrow point in a specific factual context. Other cases -- including the vast majority of Supreme Court of Canada decisions -- decide broader legal propositions and, in the course of doing so, set out legal analyses that have application beyond the facts of the particular case.

[20] Obiter dicta will move along a continuum. A legal pronouncement that is integral to the result or the analysis that underlies the determination of the matter in any particular case will be binding. Obiter that is incidental or collateral to that analysis should not be regarded as binding, although it will obviously remain persuasive.

[21] Lower courts should be slow to characterize obiter dicta from the Supreme Court of Canada as non-binding. It is best to begin from the premise that all obiter from the Supreme Court of Canada should be followed, and to move away from that premise only where a reading of the relevant judgment provides a cogent reason for not applying that obiter. The orderly and rational development of the jurisprudence is not served if lower courts are too quick to strike out in legal directions different than those signalled in obiter from the Supreme Court of Canada. Having [page409] stressed the need for caution when deciding whether to characterize obiter from the Supreme Court of Canada as non-binding and to decline to follow that obiter, I will now set out the reasons why I think the obiter in Crawford and Noble are not binding and should not be followed.

[22] My first reason for treating the obiter dicta in Crawford and Noble as non-binding is based on the pre-existing s. 4(6) jurisprudence from the Supreme Court of Canada. No authority is cited in either Crawford or Noble for the proposition that s. 4(6) precludes a trial judge from instructing the jury that it cannot use an accused's failure to testify as evidence of guilt. There is strong authority from the Supreme Court of Canada pre-dating Crawford and Noble declaring that such comments are not contrary to s. 4(6): R. v. McConnell, 1968 22 (SCC), [1968] S.C.R. 802, [1968] S.C.J. No. 61; R. v. Avon, 1971 133 (SCC), [1971] S.C.R. 650, [1971] S.C.J. No. 60; R. v. Vézeau, 1976 7 (SCC), [1977] 2 S.C.R. 277, [1976] S.C.J. No. 71, at pp. 289-90 S.C.R.; R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, at pp. 557-58 S.C.R.; see, also, Report of the Federal/ Provincial Task Force on Uniform Rules of Evidence (Toronto: Carswell, 1982), at pp. 342-43 and 353-56. This line of authority was not referred to in either Crawford or Noble.

[23] In McConnell, as reproduced at p. 815 S.C.R., the trial judge told the jury in a recharge that:

[I]t was pointed out that in the course of my charge to you I stated that you did not have to accept the explanations of the accused because those explanations were not made under oath. You are not to take from that that there is any onus upon the accused to prove their innocence by going into the witness box and testifying in their defence. There is no such onus on these or any accused persons in any criminal trial of proving their innocence by going into the witness box and testifying in their own defence. You are not to be influenced in your decision by either of the accused not going into the witness box and testifying . . . . (Emphasis added)

[24] In rejecting the argument that the trial judge's instructions contravened s. 4(5) of the Canada Evidence Act (now s. 4(6)), Ritchie J., for the majority, said, at p. 809 S.C.R.:

Here the language used by the trial judge to which objection is taken was not so much a "comment" on the failure of the persons charged to testify as a statement of their right to refrain from doing so, and it does not appear to me that it should be taken to have been the intention of Parliament in enacting s. 4(5) of the Canada Evidence Act to preclude judges from explaining to juries the law with respect to the rights of accused persons in this regard. (Emphasis added)

[25] In Avon, as reproduced at p. 653 S.C.R., the trial judge told the jury: [page410]

The accused did not testify. Evidently, he could have done so. He is not obliged to do so. I must tell you immediately, because it is better to say it, it is not because the accused did not testify that you should believe that he could be guilty. His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial. Because you will have come to your decision only on the well-established principle that the Crown must prove and establish the guilt of the accused. (Emphasis added)

[26] In rejecting the claim that the trial judge's instructions contravened s. 4(5) of the Canada Evidence Act (now s. 4(6)), the majority in Avon observed, at p. 655 S.C.R.:

I would say that the language used by [the trial judge] is a "statement" of an accused's right to testify, rather than a "comment" on his failure to do so. In my opinion, the instructions complained of cannot be construed as prejudicial to the accused or such as to suggest to the jurors that his silence was used to cloak his guilt. (Emphasis added)

[27] The extracts from McConnell and Avon quoted above were undoubtedly part of the ratio decidendi of those cases. To my knowledge, the Supreme Court of Canada has not questioned the correctness of those decisions in any subsequent case. In Potvin, the majority expressly approved of the reasoning in McConnell as consistent with the proper approach to statutory interpretation.

[28] This court is, therefore, presented with a clear conflict between the obiter dicta in Crawford and Noble and the ratio decidendi of prior Supreme Court of Canada decisions. To treat the obiter as binding would be to disregard the ratio decidendi of the earlier cases. One of the primary reasons for treating obiter as binding is to preserve and promote certainty in the application of the law. Given the entirety of the s. 4(6) jurisprudence from the Supreme Court of Canada, the goal of certainty would not be served by treating the obiter in Crawford and Noble as binding.

[29] In the years subsequent to Crawford and Noble, this court has repeatedly reaffirmed the validity of the distinction drawn in McConnell and Avon between a statement of an accused's right not to testify, which does not contravene s. 4(6), and a potentially prejudicial comment on an accused's failure to testify, which does contravene the section: see R. v. Miller, 1998 5115 (ON CA), [1998] O.J. No. 5356, 131 C.C.C. (3d) 141 (C.A.), at para. 11; R. v. Knox (2006), 2006 16479 (ON CA), 80 O.R. (3d) 515, [2006] O.J. No. 1976 (C.A.); R. v. Baldwin, 2004 48158 (ON CA), [2004] O.J. No. 5143, 192 C.C.C. (3d) 165 (C.A.); R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481 (C.A.), at para. 179; R. v. Biladeau (2008), 2008 ONCA 833, 93 O.R. (3d) 365, [2008] O.J. No. 4974 (C.A.); see, also, [page411] R. v. C. (R.C.), 1996 5623 (NS CA), [1996] N.S.J. No. 198, 107 C.C.C. (3d) 362 (C.A.), at pp. 375-77 C.C.C.; R. v. Assoun, 2006 NSCA 47, [2006] N.S.J. No. 154, 207 C.C.C. (3d) 372 (C.A.), at paras. 285-88. [See Note 2 below]

[30] In Baldwin, at para. 26, Laskin J.A. said:

The Supreme Court has said repeatedly that the prohibition in s. 4(6) must be applied purposively, not literally. The section was obviously enacted for the protection of an accused: a jury may improperly conclude from a judge's comment on an accused's failure to testify that the accused is using silence as a "cloak" for guilt. Therefore, to run afoul of s. 4(6) more is required than a mere offhand comment on an accused's failure to testify. To contravene the section, the comment must give rise to a realistic risk of prejudice to the accused's defence. (Emphasis added)

[31] In Biladeau, at para. 20, Sharpe J.A. said:

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 a fashion as to suggest that . . . silence is being used as a cloak for . . . guilt". (Citation omitted; emphasis added)

[32] Apart from Crawford and Noble, there is a second line of s. 4(6) jurisprudence from the Supreme Court of Canada that arguably prohibits an instruction that an accused's failure to testify cannot be used against him. Some argue that Vézeau supports the proposition that s. 4(6) precludes a trial judge from telling a jury that it cannot draw an adverse inference from the accused's failure to testify: see H. Stewart, "Nothing Can Come of Nothing: Three Implications of Noble" (1999), 42 Crim. L.Q. 286, at p. 307; Boss, at pp. 533-34 C.C.C.

[33] It is true that, prior to Noble, an instruction to the effect that no adverse inference could be drawn from an accused's failure to testify had been held to be wrong in law. However, that holding had nothing to do with the prohibition in s. 4(6), but instead reflected the pre-Noble law, which allowed triers of fact to draw an adverse inference from an accused's failure to testify. The instruction was seen as improper not because it offended [page412] s. 4(6), but because it was wrong in law. Charron J.A. explained the distinction in Miller, at para. 7:

Section 4(6) of the Canada Evidence Act prohibits a judge from commenting to the jury on the failure of an accused to testify. From a reading of Noble in its entirety, it is clear that this is entirely separate and distinct from the question of when a trier of fact may draw an adverse inference from the failure of an accused to testify. One is a blanket prohibition against comments and the other is a general rule, with exceptions, as to what inferences can be drawn. (Emphasis added)

[34] Noble clearly changed the law with respect to the use that could be made of an accused's failure to testify. Authorities that, like Vézeau, explicitly recognized the right to draw an adverse inference from the failure of an accused to testify have been overtaken by Noble and limited to the defence of alibi. After Noble, leaving aside s. 4(6), an instruction that the jury could not use an accused's failure to testify against that accused would be a correct statement of the law.

[35] In summary, the prevailing Supreme Court of Canada jurisprudence prior to Noble and Crawford is in direct conflict with the obiter in those two cases. This court has continued to apply the ratio decidendi of the earlier cases. To abandon that path and follow the obiter in Noble and Crawford at this juncture would promote neither consistency nor predictability, which are the twin goals served by the principle of stare decisis.

[36] My second reason for treating the obiter in Crawford and Noble as non-binding arises out of the peripheral role played by that obiter in the reasoning in both cases. The reference to s. 4(6) in Crawford is part of a brief description of the accused's right to silence at trial. The case itself was concerned with how best to reconcile the competing fair trial interests of co-accused. The observation of Sopinka J. as to the scope of s. 4(6) was merely part of the constitutional backdrop to his analysis of how the competing interests of co- accused should be balanced in a joint trial.

[37] The ratio decidendi of Noble speaks to the impact of the presumption of innocence and the right to silence on the use that can be made of the accused's failure to testify at trial. The majority held that those rights preclude a trier of fact from drawing any adverse evidentiary inference from an accused's failure to testify.

[38] The reference to s. 4(6) by Sopinka J. in Noble was not made in the course of building his case for an interpretation of the right to silence and the presumption of innocence that would foreclose the jury's drawing of an adverse inference from an [page413] accused's failure to testify. Instead, Sopinka J. discussed s. 4(6) in the context of acknowledging that, in jury cases, there were certain unavoidable impediments to the full realization of the constitutional rights to silence and the presumption of innocence as developed in Noble. Sopinka J. regarded the prohibition in s. 4(6) as one of those impediments, in that it prevented a trial judge from telling a jury that the accused had the constitutional right not to testify and that the exercise of that right could not redound against him at trial. Consequently, not only was the interpretation of s. 4(6) not integral to the analysis underlying the ratio decidendi of Noble, but that interpretation potentially und ermined the effective exercise of the very rights recognized in Noble.

[39] The inconsistency between the ratio decidendi in Noble and the interpretation of s. 4(6) in Crawford and Noble leads me to my third reason for treating that obiter as non-binding. As Professor Stewart points out in "Nothing Can Come of Nothing: Three Implications of Noble", at pp. 309-10, the interpretation of s. 4(6) in McConnell and Avon promotes the effective exercise of the constitutional rights to silence and the presumption of innocence as recognized in Noble. These cases do so by permitting a trial judge to tell a jury that an accused who does not testify is exercising his or her constitutional right and that no adverse inference can be drawn from that failure to testify. Adherence to the earlier jurisprudence from the Supreme Court of Canada removes one of the features of the jury trial that Sopinka J. identified in Noble as an impediment to the full realization of the constitutional rights recog nized in Noble. Ironically, it is the ratio decidendi of the earlier cases that fits more comfortably with the constitutional vision articulated in Noble.

[40] For the reasons set out above, I agree with counsel for the appellant and Crown counsel that this court should not apply the obiter dicta in Crawford and Noble, but should continue to interpret s. 4(6) as that provision was interpreted in McConnell and Avon. On that interpretation, no argument is advanced that s. 4(6) is unconstitutional. The constitutional holding in Boss stands.

IV The Jury Instruction

[41] The jury was not told that it could not use the appellant's silence at trial as evidence against him. The trial judge would have given this instruction had he thought himself permitted to do so by law. The trial judge's assessment of the need for that [page414] kind of instruction given the comments of counsel for Mr. Solty is an important consideration in determining whether the non-direction constitutes misdirection. However, the trial judge's assessment of the situation is not conclusive.

[42] This court must examine the entirety of the instructions in the context of the submissions made by counsel for Mr. Solty and counsel for the appellant to determine whether there is a real risk that the jury may have used the appellant's silence as evidence against him in arriving at their verdicts. Obviously, no one knows for sure what the jury used or did not use. In my view, if the appellant shows a real risk that his silence was misused, that is enough to characterize the non- direction as misdirection.

[43] The adequacy of the instruction can only be resolved by reference to several passages from the trial record. I begin with comments made by counsel for the appellant in his closing:

Mr. Prokofiew, as [counsel for Mr. Solty] pointed out, chose not to testify in this case. There are many jurisdictions in the world that are, frankly, not as kind as ours; that when a person has an allegation against them, that they have to stand up; you're alleged to do this; or you prove to us, you tell us why you are not guilty. That is not, thankfully, the way things are done here in Canada. We have the luxury and we have the thankfulness that we have a system that requires the State to prove our guilt before a conviction or a finding of guilt can be entered.

In this situation, this is the situation why Mr. Prokofiew does not have to call evidence, and this is why Mr. Prokofiew did not call evidence. In the context of counsel for Mr. Solty's statement, well, yes, Mr. Solty testified, but with respect, Mr. Solty had no choice but to testify. He was implicated at every turn of these transactions. He was in transactions up to his neck. And as a result, with respect to him, he had no choice but to take the stand. In response to Mr. Prokofiew, as I will mention in my submission, the evidence comes down to the evidence of Mr. Tulloch, and juxtaposed by the evidence of Peter Solty. With the greatest respect to them, their evidence does not come close to establishing guilt beyond a reasonable doubt in this case. And in the context of what Mr. Solty testified to will simply adjust the position of the evidence of Mr. Tulloch. Nothing more, nothing less. (Emphasis added)

[44] The jury would understand these comments as a direct response to the submissions made earlier by counsel for Mr. Solty, reproduced above, at para. 11. Certainly, the trial judge made it absolutely clear to the jury that the Crown carried the burden of proof throughout the proceedings.

[45] The trial judge, early in his instructions, told the jury that its verdict had to be based on the evidence and that the jury could not speculate about what additional evidence might have been called: [page415]

As judges of the facts, your first duty is to decide what the facts are in this case. You make that decision from all of the evidence given during the trial. There will be no more evidence. You will consider nothing else. You are entitled to come to common sense conclusions based on the evidence that you accept. You must not speculate, however, about what evidence there might have been or permit yourself to guess or make up theories without evidence to support them.

[46] The trial judge returned to the same theme a few paragraphs later, reminding the jury, "Under our system of law, you [determine the verdict] on the basis of the evidence put before you, and only on that evidence."

[47] In the course of his instructions, the trial judge defined evidence as follows: "Only things that are admitted, the exhibits and the things witnesses say in testimony before you, are evidence."

[48] The trial judge's explanation of the presumption of innocence also made it clear that the appellant had no obligation to testify or otherwise disprove his guilt:

The presumption of innocence means that both Mr. Prokofiew and Mr. Solty started the trial as innocent persons. The presumption stays with them throughout the case, including your deliberations at the end of the trial. It is only defeated if and when Crown counsel has satisfied all of you, beyond a reasonable doubt, that either or both Mr. Prokofiew and Mr. Solty are guilty of either or both of the crimes with which they are each charged.

[49] The trial judge next tied the presumption of innocence into the burden of proof in a manner that spoke almost directly to the irrelevance of the appellant's failure to testify:

Mr. Solty and Mr. Prokofiew do not have to present evidence or prove anything in this case. In particular, they do not have to prove that they are innocent of the crimes charged. From start to finish, it is the Crown that must prove guilt beyond a reasonable doubt. It is Crown counsel who must prove Mr. Solty's guilt and/or Mr. Prokofiew's guilt beyond a reasonable doubt, not Mr. Prokofiew or Mr. Solty who must prove their innocence.

[50] Finally, in reference to the application of the reasonable doubt standard, the trial judge reminded the jury that it could convict the appellant only if "after considering all of the evidence [they were] sure that Mr. Prokofiew committed an offence charged". In contrast, in explaining the basis upon which an acquittal could be entered, the trial judge made it clear that the absence of evidence could give rise to a reasonable doubt:

If at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that Mr. Prokofiew committed an offence, you should find him not guilty of it. (Emphasis added) [page416]

[51] Taking into account the entirety of the instructions, I am satisfied that the jury would understand that the Crown could prove the appellant's guilt based only on the evidence, and that the appellant's silence at trial -- or indeed, any other non-evidentiary matter -- could not be used to infer the appellant's guilt. That is not to say that the jury would not look at what was a very formidable case for the Crown in a different light given the absence of any explanation from the appellant for the mass of incriminating evidence. As explained in Noble, at para. 282, a trier of fact will inevitably, as part of its deliberative process, weigh the Crown's case against the evidence, if any, that conflicts with that case. The appellant could point to precious little that conflicted with the Crown's case on this record.

V The Other Grounds of Appeal

[52] The appellant submits that the trial judge erred in holding that certain handwritten notations in the deposit book and cheque stubs belonging to Discount Sales, one of the companies through which the proceeds of the fraud were funnelled, were admissible hearsay. The trial judge held that the notation "E" on some of the documents was admissible to identify the appellant, whose first name began with the letter "E", as one of the recipients of the money funnelled through Discount Sales. The appellant contends that the author of the notations was never identified and that there were no circumstantial indicia of reliability justifying the admission of the notations under the principled exception to the rule against hearsay evidence.

[53] The trial judge told the jury that the notations on Discount Sales' banking documents could be used to connect the appellant to the proceeds of the fraud paid through Discount Sales' bank accounts. He told the jury to be "cautious" in using the notations as evidence against the appellant.

[54] The Crown concedes that the notations were inadmissible hearsay and argues that their admission could not possibly have affected the outcome. In light of the Crown's concession, I will assume the notations should not have been admitted as evidence capable of connecting the appellant to the proceeds funnelled through Discount Sales' bank accounts. I agree with the Crown's submission that the admission of the notations for that purpose caused no substantial wrong or miscarriage of justice.

[55] Apart entirely from the appellant's connection to Discount Sales, there was overwhelming evidence of the appellant's knowing involvement in the fraudulent scheme. Mr. Tulloch and [page417] Mr. Solty gave direct evidence describing the appellant as the prime mover in the scheme, both as it related to the arrangement of the fraudulent transactions and the methods used to disseminate the proceeds of the scheme to the various participants. Mr. Tulloch testified that the appellant knew that the equipment being "sold" did not exist.

[56] There was also evidence, apart from the notations on the banking documents, linking the appellant to Discount Sales. Mr. Tulloch gave evidence that the appellant operated Discount Sales and that Discount Sales received payments for setting up the fraudulent transactions. Mr. Tulloch also testified that the appellant used Discount Sales to funnel certain portions of Mr. Tulloch's share of the proceeds into purchases of a motorcycle and a boat for Mr. Tulloch. Financial records confirmed the use of Discount Sales to make the payment for these purchases. In addition to Mr. Tulloch's evidence, the Articles of Incorporation for Discount Sales showed the appellant's home address as the residential address for the first director. John O'Meara, who was listed as the first director, was the appellant's father-in-law. According to Mr. O'Meara's wife, Mr. O'Meara had nothing to do with the operation of any business out of either the residential or the registered business address shown on the Articles of Incorpora tion. She also testified that her husband had no significant assets when he passed away.

[57] It is obvious from a review of the record that the notations on the bank documents were but a small brick in a very large wall built by the evidence offered by the Crown against the appellant. Assuming those notations could not be used as evidence against the appellant, the rest of the evidence presented an overwhelming case.

[58] The appellant also submitted that his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms were infringed and that the proceedings should have been stayed as a result of the unreasonable delay in bringing him to trial on these charges. The appellant was arrested in August 1999 and did not go to trial until November 2004. A 63-month delay between arrest and trial obviously merits s. 11(b) scrutiny.

[59] This trial was one of three complicated and interrelated fraud trials arising out of a lengthy and complex investigation involving several different police forces. The appellant was charged in respect of two of the three allegedly fraudulent schemes. It was acknowledged that the trials involving those schemes could not proceed together. The Crown chose to proceed with what was referred to as the "car flip" fraud before proceeding with the charges at issue in this appeal, which were referred [page418] to as the "heavy equipment" fraud. Preliminary inquiries were held in respect of both the "car flip" and the "heavy equipment" frauds in 2001. The "car flip" trial was set for November 2002 as counsel for the appellant was not available on the earlier dates offered by the court.

[60] The "car flip" trial proceeded in November 2002. Evidence continued until June 2003, with written submissions completed in November 2003. The appellant was convicted in March 2004 and sentenced in May 2004. On the same date that sentence was passed on the "car flip" charges, a November 2004 date was set for the trial of the "heavy equipment" charges. The court offered September dates but counsel for the appellant was not available until the end of October 2004.

[61] I see no merit to the s. 11(b) claim. In light of the number and complexity of the charges, and the reality that the charges had to be prosecuted separately and sequentially, it was inevitable that the last trial would take place years after the arrest. There is no basis to criticize the Crown for the order in which it chose to prosecute the cases or for the manner in which the individual charges made their way through the process. Counsel for the appellant agreed to this sequence of trials. It was eminently reasonable to await the end of the "car flip" trial before setting a trial date for these charges. The appellant was offered dates within about four months of the conclusion of the "car flip" trial. I see nothing unreasonable in a four-month interval between two lengthy and complicated proceedings.

VI The Sentence Appeal

[62] The appellant received a sentence of three years. He was the prime mover in what can only be described as a massive fraud against the Government of Canada which caused actual losses to Canada exceeding $3 million. Tax frauds on the public purse undermine the fiscal viability of a country and must be treated as serious crimes meriting denunciatory sentences. Three years is well within the appropriate range for this kind of offence.

[63] Counsel for the appellant makes one argument against the fitness of sentence. He submits that, when the appellant was sentenced, he had a prior fraud conviction arising out of the earlier "car flip" trial. That conviction was subsequently overturned in this court and the Crown declined to retry the matter. Counsel submits that the appellant, therefore, was in fact a first offender and that his sentence should be adjusted in this court to [page419] reflect that status. Counsel for the Crown submits that the prior sentence on the "car flip" trial was, through the totality principle, effectively treated as a mitigating factor when the trial judge sentenced the appellant for the charges at issue. Without addressing the merits of either argument directly, I would simply say that even if the appellant is treated as a first offender, three years for this crime is entirely appropriate.

VII Conclusion

[64] I would dismiss the appeals and affirm the convictions and the sentences imposed by the trial judge.

Appeal dismissed.

Notes

Note 1: The propriety of counsel's comments concerning the appellant's failure to testify is not in issue on this appeal. Nothing in these reasons should be taken as approval of all of the comments made by counsel for Mr. Solty. Some comments, especially the comment in the last sentence, may have gone too far. In any case where counsel proposes to make a submission to the jury based on a co-accused's failure to testify, that submission should be vetted with the trial judge before it is made. The trial judge will consider the proposed wording of the submission having regard to the competing interests of the co-accused as discussed in Crawford.

Note 2: The British Columbia Court of Appeal applied the obiter from Crawford and Noble in R. v. Bush, 2001 BCCA 447, [2001] B.C.J. No. 2020, 159 C.C.C. (3d) 161 (C.A.), at paras. 60-64. In Pollock, at paras. 150-151, this court acknowledged but did not have to decide the question whether the obiter in Noble should be applied.