CITATION: R. v. Arruda, 2011 ONCA 345

DATE: 20110503

DOCKET: C50185

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geral Couto Arruda

Appellant

David E. Harris, for the appellant

David Friesen, for the respondent

Heard: April 27, 2011

On appeal from the conviction entered by Justice M.G. Quigley of the Superior Court of Justice, dated December 10, 2008.

Epstein J.A.:

[1] The appellant appeals his convictions after a trial by judge and jury for the crimes of perjury and attempt to obstruct justice. The charges arose out of his testimony as a proposed surety at a bail hearing that took place in March 2007, in the course of which the appellant was asked “And you have no criminal record?” to which he answered “No I don’t”. In fact, he had a dated criminal record consisting of convictions between 1971 and 1995 for possession of stolen property, attempt theft, impaired driving and obstruct peace officer.

[2] At the trial, the appellant, a 55 year old man originally from Portugal who was on disability for his alcoholism and who had finished only five years of school, gave evidence as to why he gave false testimony at the bail hearing. He explained that at the time he answered the question, he did not know it was false. He did not know he had a criminal record. He believed that given the passage of time his record had been “wiped” clean. In cross-examination he testified that had anyone asked him specifically if he had been convicted of impaired driving, he would have said “yes”, although he did not realize that a conviction for impaired driving gave him a criminal record. The appellant also testified that he did not know that a criminal record was relevant to his qualifications as a surety.

[3] The defence at trial was that, given the appellant’s various challenges, the Crown had not proven beyond a reasonable doubt that the appellant, when he gave the evidence about not having a criminal conviction, knew it was false and intended to mislead.

[4] The argument on appeal is based on the trial judge’s answers to questions posed by the jury after four hours of deliberation – questions that focused on the use the jury could make of the appellant’s mental capacity, linguistic ability, history of alcoholism and understanding of the law.

[5] The jury asked the following questions:

Can reasonable doubt be based upon questions relating to mental capacity or linguistic ability?

Can reasonable doubt be based upon the accused not understanding the law? For example, criminal convictions do not translate to having a criminal record.

[6] The trial judge’s answer to the first question included advising the members of the jury that:

a) they were “getting sidetracked” in looking at mental capacity or linguistic ability;

b) there was no “not criminally responsible” defence raised, but that the appellant’s memory “is relevant to what he knew when he testified”;

c) linguistic ability was not an issue as there was no evidence that the appellant did not understand the question asked or his answer; and

d) any finding about the appellant’s memory should be based on the evidence presented, not “speculation” about alcoholics.

[7] The trial judge’s answer to the second question included advising the jury that “everyone in our law is presumed to know the law”.

[8] Shortly after answering the questions, the jury returned its verdict of guilty in relation to each offence with which he was charged.

[9] Counsel for the appellant on this appeal, who did not represent him at trial, submits that these answers were wrong in law and effectively deprived the appellant of his only available defence, namely, that he lacked the mens rea: he did not intend to deceive.

[10] We agree.

[11] As to the first question, it was clear that the jury was seeking help with respect to the appellant’s mental capacity and linguistic ability, issues that could only relate to the appellant’s defence that he lacked the mens rea necessary for perjury. Answering the question by criticizing the jury for being sidetracked through the introduction of the concept of an NCR defence was unresponsive and confusing. A correct answer should have dealt with the evidence with respect to the appellant’s ability with English and his difficulty in understanding and answering the question about whether he had a criminal record.

[12] With respect to the second question, advising the jury that the appellant was deemed to know the law was, in our view, a fatal error. The jury was asking whether the appellant’s mistaken belief that his criminal record was “clean”, though an error in law, could create reasonable doubt as to the appellant’s mens rea for perjury. The trial judge’s answer that “everyone is presumed to know the law”, followed by a summary of the appellant’s evidence relevant to the issue of his understanding of his criminal record and ending with what the trial judge described as evidence that was “contradictory” on this point, severely prejudiced the appellant. The jury may well have understood the trial judge to mean that the appellant was deemed to know that his criminal record still existed.

[13] Through the answers to these questions, the trial judge, in effect, instructed the jury that knowledge had been proven and the appellant was guilty. It is difficult to see how the jury could do other than convict in the face of this instruction.

[14] Given our conclusion that the trial judge erred in responding to the jury’s questions in the manner he did, it is unnecessary to deal with the appellant’s motion to introduce fresh evidence.

[15] For these reasons, the appeal is allowed, the conviction is set aside and a new trial ordered.

RELEASED:

“JCM” “J.C. MacPherson J.A.”

“MAY -3 2011” “R.A. Blair J.A.”

“Gloria Epstein J.A.”