Her Majesty the Queen v. W.L.

[Indexed as: R. v. L. (W.)]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Lauwers JJ.A. and Speyer J. (ad hoc)

January 23, 2015

123 O.R. (3d) 641 | 2015 ONCA 37

Case Summary

Criminal law — Rights of accused — Right to remain silent — Crown infringing accused's right to remain silent by implying in cross-examination that accused having duty to assist with the investigation — Certain questions about his explanation to police justified as accused opening door during examination-in-chief but Crown's questioning crossing line into accused's right to silence — Trial judge erring by failing to instruct jury that although entitled to consider accused's explanation about why he did not provide police with additional details about innocent explanation for touching as he had at trial, accused having right to remain silent and that they could not draw an adverse inference from exercising that right — Appeal from conviction allowed.

Criminal law — Trial — Cross-examination — Accused charged with sexual offences against his stepdaughter — Accused testifying at trial and offering innocent explanation for touching complainant — Crown counsel violating accused's pre-trial right to silence by cross-examining him about his failure to provide police with innocent explanation at time of post-arrest interview or in two years since his arrest — Some cross-examination on issue of failure to provide police with innocent explanation being justified as accused raised that issue in examination-in-chief — Cross-examination exceeding permissible limits by suggesting that accused had duty to provide explanation and that his version of events was not credible because it had not been proffered earlier — Trial judge failing to give proper limiting instruction — Accused's appeal from conviction allowed.

The accused was convicted of sexual assault and sexual interference in relation to his stepdaughter. When interviewed by the police after his arrest, he acknowledged touching the complainant on two or three occasions but denied that it was for a sexual purpose. He provided no further details of the touching or its purpose. The accused testified at trial that he touched the complainant in the rectal area on three occasions to inspect and deal with a problem she was experiencing with pinworms. He testified that he failed to tell the police why he had touched the complainant because he was confused and afraid. Crown counsel's cross-examination of the accused challenged his credibility and specifically honed in on the accused's testimony as to why he did not provide the police, at the time of the interview, with an innocent explanation for the touching. Moreover, Crown counsel questioned the accused on why it took two years, from interrogation to trial, to provide for the first time a fuller account of the non-sexual nature of the touching. The Crown's cross-examination about the accused's exercise of his right to silence was wide ranging and included an attack on accused's credibility based on the accused's failure to provide the police with information about matters collateral to the crime charged. The accused appealed his conviction.

Held, the appeal should be allowed.

Some cross-examination of the accused on his failure to provide the police with an explanation for the touching was justified as the accused had chosen to put his reason for failing to do so in issue during his examination-in-chief. However, Crown counsel exceeded the permissible limits and violated the accused's pre-trial right to silence. Particularly troubling were the questions about the accused's two-year silence and the reason, during that period, that he failed to explain what he meant when he denied that the touching was for a sexual purpose. Those questions clearly implied that the accused was under a duty to provide an explanation. That line of questioning also suggested that the accused's version of events was not credible on the basis that it had not been proffered at an earlier date. An accused has no duty or obligation to provide the authorities with any assistance either prior to or at trial. Even if it were determined that Crown counsel's cross-examination fell within the boundaries of fairness, a proper instruction to the jury was of critical importance. The jury ought to have been cautioned that the accused had a right to remain silent and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial. The trial judge gave no such instruction. Because of the seriousness of the errors, it could not be said that the verdict would necessarily have been the same.

Cases referred to

R. v. Chambers, 1990 CanLII 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.LR. (2d) 299, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235, 11 W.C.B. (2d) 191; R. v. Crawford (1995), 1995 CanLII 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. L. (G.), [2009] O.J. No. 2533, 2009 ONCA 501, 67 C.R. (6th) 278, 250 O.A.C. 266; R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, 235 D.L.R. (4th) 244, 316 N.R. 52, J.E. 2004-452, 184 O.A.C. 1, 180 C.C.C. (3d) 476, 17 C.R. (6th) 1, 60 W.C.B. (2d) 74; R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 131 O.A.C. 346, 144 C.C.C. (3d) 551, 33 C.R. (5th) 390, 46 W.C.B. (2d) 121 (C.A.); R. v. O. (G.A.), 1997 ABCA 268, [1997] A.J. No. 842, 200 A.R. 363, 119 C.C.C. (3d) 30, 9 C.R. (5th) 16, 35 W.C.B. (2d) 483 (C.A.); R. v. P. (M.B.), 1994 CanLII 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. Palmer, [2008] O.J. No. 4753, 2008 ONCA 797, 181 C.R.R. (2d) 134; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210, 14 W.C.B. (2d) 266; R. v. W. (M.C.), [2002] B.C.J. No. 1187, 2002 BCCA 341, 169 B.C.A.C. 128, 165 C.C.C. (3d) 129, 3 C.R. (6th) 64, 96 C.R.R. (2d) 273, 54 W.C.B. (2d) 261

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (b)(iii)

Authorities referred to

Akhtar, Suhail, "Improprieties in Cross-Examination" (2004), 15 C.R. (6th) 236

Frater, Robert J., "The Seven Deadly Prosecutorial Sins" (2001), 7 Can. Crim. L. Rev. 209

Frater, Robert J., Prosecutorial Misconduct (Aurora, Ont.: Canada Law Book, 2009)

APPEAL by the accused from the conviction entered on May 4, 2011 by G. Mulligan J. of the Superior Court of Justice, sitting with a jury.

Keith E. Wright, for appellant.

Greg Skerkowski, for respondent.

The judgment of the court was delivered by

[1] SPEYER J. (ad hoc): — The appellant was convicted by a jury of sexual assault and sexual interference in relation to R.A., his stepdaughter. He seeks to set aside his convictions and has argued multiple grounds of appeal. One ground of appeal has merit. For the reasons that follow, I would allow the appeal and order a new trial on the basis that Crown counsel's cross-examination of the appellant on his post-arrest silence exceeded permissible limits. Further, the absence of a clear jury instruction on this issue is fatal to upholding the jury verdict.

Facts

The alleged incidents

[2] R.A. was nine years old when the final incident of sexual abuse is alleged to have occurred. The allegations of the appellant's sexual misconduct were triggered by events that took place on the evening of June 23, 2009. The complainant testified that she went to bed that evening around 9:30 p.m. Her mother, J.A., was at work, and her two brothers, C.A. and Z.A., were in other rooms of the family home. The appellant entered her bedroom and proceeded to put his hand down the complainant's underwear touching her vagina. The appellant subsequently left the complainant's bedroom but not before admonishing her not to tell anyone.

[3] The complainant was unable to sleep: she went into her brother C.A.'s bedroom and told him what had occurred. C.A. testified that when his sister came into the bedroom, she was crying. Initial attempts to make telephone contact with their mother were unsuccessful. J.A., being at work, was unable to answer her cellphone.

[4] C.A. and the complainant enlisted the assistance of their older brother Z.A., who was in another room of the house watching television. Eventually, Z.A. succeeded in contacting his mother, and told her of his sister's complaint.

[5] J.A. received her son's call at work at about 12:30 a.m. She returned home, woke up her daughter and had a brief conversation with her. Without waking the appellant, she gathered up her children, left the family home and phoned the police from her truck. She met briefly with the police in the parking lot of a No Frills store. Arrangements were made with the authorities for the complainant to come to the police station the following morning to provide a videotaped statement. J.A. and her three children stayed at a motel for the remainder of the evening.

[6] In addition to the events of the previous evening, the complainant disclosed additional acts of sexual abuse when she provided her videotaped statement. The complainant's evidence was that the appellant's sexual misconduct started, albeit infrequently, in 2006 when the family lived in Woodbridge, and continued on a more frequent basis after the family moved from Woodbridge to their home in Richmond Hill.

The Appellant's Statement

[7] On the same day that R.A. provided her videotaped statement, the appellant was formally arrested at his place of employment, advised of the precise charges he was facing and given his right to counsel. He was transported to a York Region police station and, again at the station, advised of the nature of the charges. What he was not told until later that evening was the identity of the complainant.

[8] On the evening of his arrest, the appellant was interviewed for two and one half hours by the officer in charge of the investigation. The interview was videotaped. It was an agreed statement of fact at trial that no police officer involved in the investigation threatened or coerced the appellant in any manner, or offered any promises or inducements to provide a statement.

[9] Prior to beginning the interview, the police attempted to telephone the appellant's personal lawyer. Although a message was left on his answering service, there was no response. Accordingly, a call was placed to duty counsel. Duty counsel spoke with the appellant for about five minutes prior to the interview.

[10] As a matter of strategy, the officer in charge conducted the interview with the appellant in a manner that did not immediately identify R.A. as the complainant. Near the conclusion of the interview, the officer advised the appellant that it was his stepdaughter who was the complainant. The appellant acknowledged touching his stepdaughter on two or three occasion but denied that it was for a sexual purpose. He provided no further details of the touching or its purpose. The appellant specifically denied any acts of oral sex or sexual intercourse.

Did the Crown's Cross-Examination Render the Trial Unfair?

Context

[11] A brief description of the appellant's defence and a digest of the examination-in-chief and the cross-examination are necessary to flesh out this issue.

[12] The appellant testified at trial. At the heart of his defence was a denial of touching his stepdaughter for a sexual purpose. The appellant denied ever touching the complainant's vagina: he testified that he touched the complainant in the rectal area of her body on three occasions. The purpose of the touching, on each occasion, was to inspect and deal with a problem the complainant experienced with pinworms. The appellant's evidence was that the complainant's mother was aware of her daughter's problem. He explained that he attended a pharmacy, at the complainant's mother's direction, to purchase the necessary medication to address the problem. As noted, these details that provided an innocent explanation as to the nature of the touching were not provided to the investigating officer during the interrogation.

[13] It is apparent from the record that, as a tactical matter, trial counsel decided to address the failure of the appellant to provide this fuller explanation to the police during the interview. At the beginning of the appellant's examination-in-chief, defence counsel posed the following questions that elicited the following answers:

Q: Did you touch R.A.?

A: Yes.

Q: And was it sexual?

A: No.

Q: Okay, did you explain yourself in the video with respect to the touching?

A: No. I did not.

Q: And why is that the case. Why did you not do that?

A: Um, I was afraid at the time. I was trying to make sense of something that did not make sense. . . . I couldn't explain it at the time. I was -- my mind was running.

Q: Okay, Well now is your chance. So please tell us about the touching of R.A.

A: The only time I touched R.A. was to check for pinworms. There was never any type of sexual touching.

[14] The appellant proceeded to testify in detail as to the circumstances of each occasion when he touched his stepdaughter with respect to pinworms. Defence counsel then returned to the issue of why the appellant did not provide the police with a fuller account of the innocent nature of the touching:

Q: And in your statement, you didn't explain any of this. Correct?

A: I was scared at the time. Um, it was very confusing. Um, It seemed that things were being put to me rather than asking me. Sort of, more like a suggestion than a question. And trying to process what was going on, like I did say I touched her and at the time and at the time when I was thinking of it, it was the only time I remembered touching R.A. -- that would -- that could be in that area. I didn't have the opportunity at that time. Things were, like I said, very confusing. In retrospect -- if I could do it all over again I -- I likely would have said a lot more but it just -- I was caught off guard.

[15] Crown counsel's cross-examination challenged the appellant's credibility and specifically honed in on the appellant's testimony as to why he did not provide the police, at the time of the interview, with "an innocent explanation". Moreover, Crown counsel questioned the appellant on why it took two years, from interrogation to trial, to provide for the first time a fuller account as to the non-sexual nature of the touching. Further, Crown counsel cross-examined the appellant on his failure to tell the investigating officer about matters extraneous to the pinworm issue. The following are samples of the cross-examination:

Q: Sir, you are at the police station. You're charged with very serious crimes?

A: Yes.

Q: You finally break down and tell the police you touched R.A., correct?

A: Yes.

Q: You don't explain it. Don't you think it's a good time to be explaining it?

A: If I would have been able to talk at the time. I was very upset.

Q: You were able to talk there. Weren't you?

A: Yes. Some.

Q: So, you weren't able to give an innocent explanation?

A: No. I was able to talk but not explain everything that was running through my mind at that moment. It was all over the place.

Q: Sir, police are asking you why. You could have explained the quote/unquote, non-sexual aspect, but you didn't. You didn't because there was no innocent explanation sir. None at all.

A: Yes, there was.

Q: You have had almost two years and now you are telling us about? Did it take you this long to make it up?

A: No, I didn't make anything up.

Q: Sir, you're with -- in front of a police officer, you've been arrested for very serious charges. Correct?

A: Yes.

Q: You may have an explanation. Correct?

A: At the time, no. I wasn't sure what was going on.

Q: Well is it because you took two years to get an explanation. Is that why?

A: No, That came -- that was after the fact.

Q: So does he (referring to an aspect of C.A.'s evidence) say it two year after it happened like you say two years after it happened about the pinworms? Is that the same thing?

A: No.

Q: Now, sir, even at this time, you didn't mention to the officer anything about J.A. stealing money from [G.]. Nothing like that. You didn't think to mention that.

A: Not at the time. No.

Q: Well, sir, this was the time, this was your chance, I'm going to put it to you sir, to give an innocent explanation if you wanted to. To tell the police about anything. Any trouble you were having with R.A. or her family.

A: Yes.

The Position of the Parties

[16] The appellant argues that Crown counsel's cross-examination of the appellant on his failure to give an innocent explanation to the police, at the time of his interrogation, trespassed on his right to silence. Further, he says the cross-examination of the appellant regarding the delay in waiting two years to provide an explanation, from the date of the police interview to trial, was improper and highly prejudicial. Counsel also contends that even if it was legally permissible, given the tactical decisions made by defence counsel at trial, for Crown counsel to question the appellant as to why he did not give an explanation in respect to pinworms in his statement to the police, the breadth of the cross-examination was a serious error. Finally, it is submitted that it was incumbent upon the trial judge to give a clear instruction cautioning the jury that the appellant had a right to silence when interrogated by the police, and that his failure to provide a fuller account of his conduct could not be used to infer guilt.

[17] The Crown concedes that as a general rule, Crown counsel is not permitted to impeach the testimony of an accused based on his choice to remain silent. However, the Crown submits that this is an exceptional case because the appellant made a tactical decision, in advance of cross-examination, to explain why he did not provide a fuller explanation as to the nature of the touching. That is, the appellant chose to put in issue the reason why he did not say more to the police at the time of his interrogation. This decision opened the door for Crown counsel to cross-examine the appellant on this aspect on his testimony and could be taken into account by the jury in assessing the appellant's credibility.

Legal Principles

[18] Certain principles that govern the right of an accused to remain silent post-arrest are in play in this appeal. Deeply embedded in our law is the principle that an accused person has the right to remain silent at the investigative stage of a prosecution as well as at trial: R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, 59 C.C.C. (3d) 321, at para. 50. Accordingly, evidence of pre-trial silence cannot be used as positive evidence to infer guilt: R. v. Crawford (1995), 1995 CanLII 138 (SCC), 22 O.R. (3d) 288, [1995] 1 S.C.R. 858, 96 C.C.C. (3d) 481, at para. 38. While a trier of fact may reject an accused's explanation as not being believable, and use that finding in assessing credibility, a trier of fact is prohibited from using the silence of an accused as a basis for drawing an adverse inference as to credibility: R. v. Palmer, [2008] O.J. No. 4753, 2008 ONCA 797, at para. 9.

[19] Further, the constitutional right to remain silent is not extinguished when an accused chooses to speak to an officer with respect to some matters, but not others. That is, an accused cannot be cross-examined on matters on which he has chosen to remain silent: R. v. L. (G.), [2009] O.J. No. 2533, 2009 ONCA 501, 250 O.A.C. 266, at para. 39.

[20] An exception to the general rule prohibiting cross-examination on post-arrest silence occurs when an accused makes it an issue at trial: R. v. McNeill (2000), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212, [2000] O.J. No. 1357, 144 C.C.C. (3d) 551 (C.A.); R. v. O. (G.A.), 1997 ABCA 268, [1997] A.J. No. 842, 200 A.R. 363, 119 C.C.C. (3d) 30 (C.A.); R. v. W. (M.C.), [2002] B.C.J. No. 1187, 2002 BCCA 341, 165 C.C.C. (3d) 129. Importantly, however, it is incumbent upon the trial judge to instruct the jury as to the permissible and impermissible uses that can be made of such evidence. It is worth noting that even where the cross-examination was permitted as an exception to the general rule, a new trial was ordered in each of the three above-cited cases, due to the failure of the trial judge to provide the jury with a proper limiting instruction.

[21] Finally, another legal tenet is applicable in this appeal: there is no duty or obligation on any accused to assist the prosecution: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, at p. 333 S.C.R.; R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, [1994] S.C.J. No. 27, at p. 578 S.C.R.

Discussion

[22] It is wrong to underestimate, and difficult to exaggerate, the importance of the right to cross-examine witnesses to demonstrate truth and test credibility in any criminal trial. From the perspective of an accused, the right to cross-examine witnesses for the prosecution, "without significant and unwarranted constraint", is an essential component of the right to make full answer and defence: R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, at para. 2. Similarly, Crown counsel is entitled to conduct a vigorous cross-examination of a witness, including an accused, as part of the truth finding function of the trial. Nevertheless, because Crown counsel performs a unique, quasi-judicial function, there are well-established constraints that limit the type of questions that may be asked of an accused on cross-examination.[^1] One well-known limitation is that Crown counsel cannot ask questions that diminish an accused's constitutional right to silence by inviting the jury to draw impermissible inferences as to guilt or credibility based on the exercise of that right.

[23] I accept that Crown counsel was justified in asking the appellant questions concerning his explanation of the reasons he did not give a fuller account of the pinworm occurrences to the investigating officer. The essence of the appellant's evidence was that he did not amplify upon his assertion that his touching of the complainant was for a non-sexual purpose because he was afraid and confused. The appellant's silence on this point during his interrogation became a fact in issue, one raised by the appellant in his examination-in-chief. As the appellant had "opened the door" on this issue, Crown counsel was entitled to cross-examine the appellant on it within reasonable limits: McNeill, at paras. 34-35. It became a matter which the jury was entitled to take into account in assessing the appellant's credibility.

[24] Regrettably, the scope of Crown counsel's cross-examination went beyond permissible limits. Particularly troubling are the questions asked of the appellant about his two-year silence, from the date of arrest until trial, and the reason, during that period, that he failed to explain what he meant when he denied that the touching of the complainant was for a sexual purpose. These questions clearly implied that the appellant was under a duty to provide an explanation. Moreover, this line of questioning also suggested that the appellant's version of events was not credible on the basis it had not been proffered at an earlier date. It is the right of any accused to remain silent, and there is no duty or obligation to provide the authorities with any assistance either prior to or at trial.

[25] In her all-out assault on the appellant's post-arrest silence, Crown counsel did not limit her questioning to the failure to tell the police about the pinworm incidents. The scope of the cross-examination pertaining to the appellant's silence was wide ranging. It included a failure of the appellant to tell the police about several collateral matters such as J.A.'s alleged thefts from her employer.

[26] While it is true that the appellant's testimony opened the subject matter of his reason for not giving a fuller account of his pinworm explanation to the police, thereby opening the door to cross-examination on the issue, it is important that the scope of the cross-examination be confined to reasonable limits so as to minimize the potential for trial unfairness. I echo the wisdom of Moldaver J.A. (as he then was) in McNeill, where a similar situation arose, that it "would have been preferable had Crown counsel not seized upon the appellant's response to launch a full scale attack on his credibility": para. 35.

[27] Even if it were determined that Crown counsel's cross-examination fell within the boundaries of fairness, a proper instruction to the jury was of critical importance. There was no such instruction. The jury ought to have been told that they were entitled to take into account, in assessing the appellant's credibility, all of his evidence, including his explanation of why he did not provide a fuller account of his conduct. The jury ought to have been cautioned, however, that the appellant had a right to remain silent, had a right to choose what to say and what not to say, and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial: Palmer, at para. 9. Further, the jury ought to have been told that the appellant was under no duty or obligation to disclose anything to the police and no adverse inference could be drawn against him from his failure to do so.

[28] Because of the seriousness of the errors, it cannot be said the verdict would necessarily have been the same. Thus, I am unable to invoke the curative proviso at s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

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

Appeal allowed.

Notes

[^1]: See Robert J. Frater, "The Seven Deadly Prosecutorial Sins" (2001), 7 Can. Crim. L. Rev. 209; Robert J. Frater, Prosecutorial Misconduct (Aurora, Ont.: Canada Law Book, 2009), at pp. 141-61; Suhail Akhtar, "Improprieties in Cross-Examination" (2004), 15 C.R. (6th) 236.