Court Information

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-06-02 Docket: C67070

Judges: Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

Parties and Counsel

BETWEEN: Her Majesty the Queen, Respondent and Chantal Guillemette, Appellant

Counsel: Christine Mainville, for the appellant Gavin MacDonald, for the respondent

Heard: December 1, 2021

On appeal from the convictions entered by Justice John F. Adamson of the Ontario Court of Justice on February 9, 2018, and from the sentence imposed on July 22, 2019.

By the Court:

Overview

[1] The appellant spent an evening at a bar called the Bear Claw (“the Claw”). While she expected to meet her friend there, he never showed up. After consuming at least four large beers, she decided to go home.

[2] The appellant acknowledged that she had consumed too much alcohol to drive, yet she drove. She explained that she did so because several men had made her fearful for her safety. She got into an accident, injuring one of the men and damaging her car.

[3] The central issue at trial concerned the appellant’s claim that she should be excused for her crimes because she acted out of necessity. The trial judge thought otherwise. The appellant was convicted of three offences: impaired driving causing bodily harm, dangerous driving causing bodily harm, and failing to stop at an accident. She received a 16 and a half-month custodial sentence.

[4] This is an appeal from conviction and sentence. The conviction appeal rests on three grounds: (1) the appellant’s right to silence was breached; (2) the reasons for judgment reflect unwarranted assumptions about human behaviour; and (3) the trial judge failed to properly assess the credibility and reliability of certain Crown witnesses. To dispose of the appeal, we need only address the first issue: whether the appellant’s right to silence was breached. The appellant claims that the trial judge erred by: (1) allowing the trial Crown to elicit evidence of her silence; and (2) drawing an adverse inference from her silence. We agree. A new trial is required.

The Factual Backdrop

The Appellant’s Time Inside the Claw

[5] Three Crown witnesses were at the Claw on the evening in question. At trial, they and the appellant gave divergent accounts of the evening.

[6] A number of the Crown witnesses described how they had “run-ins” with the appellant inside the bar. The appellant worked as a surveillance operator at a casino and had taken a course in police foundations. At one point during the evening, she apparently suggested to one of the men, Mr. Fitzsimmons, that she was a police officer and that she could “take [him] down”. According to Mr. Fitzsimmons, the appellant tried to put him into a little “chicken” hold.

[7] The Crown witnesses described the appellant as being belligerent, aggressive, volatile, and angry. One of the witnesses recounted that the appellant used a racial slur when referring to the DJ who was playing at the Claw that night. They all expressed the view that she was intoxicated, one describing the appellant as having been “over-served”.

[8] The appellant described an entirely different version of events. She admitted to drinking four “tall boy” cans of beer but denied the suggestion that she was out of control. She denied much of the behaviour alleged in the Crown’s case. She also denied having made a racial slur and, in fact, said that the opposite was true, claiming the DJ had made a slur against her.

[9] The appellant also said that there was a man in the Claw that evening, “Chris”, who was bothering her. She had no interest in him and attempted to distance herself from him throughout the evening.

[10] Eventually, the appellant decided to go home. Knowing that she had consumed too much alcohol to drive, the appellant decided to take a taxi. There was no bank machine at the Claw so the appellant asked the bartender for $20 cash back and received it. She then proceeded to her car because she had left her cellular phone in the car earlier that evening. She testified that she had left it there because she was wearing yoga pants and did not have a pocket to place the phone in. She was going to use her phone to call a taxi. She planned to call a particular driver whose number was in her purse, which she had also left in her car.

The Appellant Leaves the Claw

[11] One Crown witness, Mr. Flaherty, who was a bartender at the Claw but not on shift that night, saw the appellant leave the Claw with a man he knew as Chris. Notably, Chris did not testify at trial. In any event, Mr. Flaherty claimed that the appellant was stumbling as she left the bar and that Chris was working to hold her up. Mr. Flaherty understood that the appellant was intending to go to Chris’ home, which was nearby. He overheard her say she was going to leave her car in the Claw parking lot for the night.

[12] Mr. Flaherty explained to the appellant that if she left her car in the parking lot, it would be towed. Despite having consumed alcohol himself, Mr. Flaherty offered to drive the appellant’s car to Chris’ home. Apparently, the appellant declined that offer. He said that the appellant then moved her car to another place within the same parking lot. After she moved her car, Mr. Flaherty said that he told the appellant again that she could not leave the car in that location.

[13] According to Mr. Flaherty, the appellant then decided to drive her car. He had warned her that if she did so, he would call 9-1-1. Consequently, as the appellant started driving, proceeding down the alleyway close to the Claw, Mr. Flaherty called 9-1-1 and reported the matter to the police. At that point, Chris was seated in the front passenger’s seat of the appellant’s car.

[14] Hearing a loud noise, Mr. Flaherty proceeded down the alleyway, which came to a dead end. In addition, the two other civilian Crown witnesses, Mr. Fitzsimmons and Mr. Nicolak, both of whom had been in the Claw earlier in the evening, heard the noise. They too proceeded down the alleyway.

[15] All testified about what occurred at the dead end of the alleyway. Mr. Fitzsimmons saw Chris, the man seated in the passenger’s seat of the car, emerge from the vehicle. Mr. Nicolak acknowledged that he leaned in the driver’s side window and attempted to remove the keys from the ignition of the appellant’s car. Yet, as he reached into the car, the appellant placed it into reverse, causing his body to collide with a post. Along with other injuries, Mr. Nicolak suffered multiple fractures to his pelvis.

[16] The men all then attempted to distance themselves from the vehicle. The appellant drove out of the alleyway, but not without difficulty and not without further damaging her car.

[17] In contrast with the Crown witnesses’ accounts of what had occurred, the appellant claimed that she had always intended to take a taxi home from the Claw. She said that she attended at her vehicle only to recover her cellular phone, which she had left in the vehicle, so that she could call the cab driver who she wished to take her home. She said that receiving the $20 cash back from the bartender, just prior to leaving the bar, demonstrates her intention to take a taxi.

[18] The appellant testified that as she left the Claw and walked to her car to retrieve her phone, Chris followed her. He asked that she go to his place, but she declined. Even so, he continued to follow her to the car. Once there, she ran into Mr. Flaherty who was standing in front of her car. He told her that she had to move her car or it would be towed. Chris was also telling her to just move the car and come to his place. She knew this did not make any sense as she had consumed alcohol and did not wish to drive.

[19] The appellant testified that she then entered her car to obtain her phone. When she unlocked the car, Chris entered the front passenger’s seat of the vehicle. The appellant told him to get out of her car. He grabbed her purse, which contained her phone, and held it away from her, preventing her from making the call. At the same time, he started touching her inner thigh. He told her to move her car to the back of the Claw, after which he would give her the phone. The appellant explained that she was very upset and yelling and pleading for help, but that Mr. Flaherty just stood there laughing, doing nothing. In the end, she perceived that she had no choice but to move her car and went down the alleyway where she had been directed. She did not know that it came to a dead end.

[20] The appellant testified that, once at the dead end, she was screaming while Chris sat next to her, not letting her go. At that point, another man “lunged” through the driver’s side window, which was open, placing his forearm in a position so that it was rubbing up against her chest. There were also other men outside of her car. She testified about what was going through her mind at the time. She was at the end of the alleyway, with no way to escape, and had four men surrounding her: one seated in the car, one thrust through the driver’s side window and touching her chest, and two others yelling from outside. She was drunk. She found the situation overwhelming and was very fearful.

[21] The man who had come through her window, Mr. Nicolak, lost his footing and fell back from the car. The appellant testified that she felt she needed to get out of there and saw this as her opportunity to do so. Accordingly, she announced that she was going to back up. As she started to reverse, Chris jumped from the car.

[22] In the end, she was able to get out of the alleyway, but not without significant damage to the car. She said they chased her car on the way out of the parking lot.

[23] She then drove home, a place that she said she perceived as the safest place for her. She testified that it was her intention to call the police when she arrived home. She did not need to make that call as the police were already there.

The Police Interaction

[24] Following upon the 9-1-1 call made by Mr. Flaherty, Cst. Thompson proceeded to the appellant’s home address. The appellant arrived in her heavily damaged car shortly after Cst. Thompson arrived. The appellant parked in her neighbour’s driveway. She had bloodshot, pink, watery eyes, was emitting a strong odour of alcohol, and her speech was slurred. She exhibited different emotions, going from being cooperative to emotional and crying. She was arrested and taken into custody.

[25] The breath test results revealed readings of 180 milligrams of alcohol in 100 milliliters of blood. Undoubtedly, the appellant had a lot of alcohol in her system.

Analysis

Overview

[26] The appellant argues that there were two fundamental legal errors at trial, both of which had the effect of breaching her right to silence.

[27] First, the appellant contends that the trial judge erred by allowing the trial Crown to adduce evidence about the appellant’s pre-trial silence surrounding the alleged attack. Second, the appellant argues that, even if the Crown was properly permitted to elicit that evidence, the trial judge clearly misused the appellant’s pre-trial silence as evidence from which he could draw an adverse inference of guilt. Individually or combined, these errors are said to be fatal to the verdicts in this case and a new trial is called for.

[28] We find that the trial judge fell into error in both respects. Before setting out the reasons underlying these conclusions, however, we begin by placing the matter within its proper context, a context that informs the legal issues to be decided.

Necessity was the Primary Live Issue

[29] There was and remains no dispute that the appellant was significantly intoxicated when she drove her vehicle on the night in question. Nor was there or is there any dispute that she seriously damaged her car. The appellant’s trial counsel did not concede that Mr. Nicolak’s injuries were caused by the appellant’s driving and argued that, if the trial judge found that the Crown met its burden to disprove the necessity defence, the appellant should only be found guilty of impaired driving and not impaired driving causing bodily harm. However, this argument was clearly made in the alternative.

[30] Therefore, the main issue for resolution at trial was whether the appellant had an excuse for committing the offences. At trial, and on appeal, the appellant argues that she did what she did out of necessity.

[31] While necessity is often referred to as a defence, it is a defence that operates to excuse, but not justify, criminal behaviour. In limited circumstances, it will excuse a person of their crime because the commission of that crime arose from a genuine emergency. The real genesis of the defence of necessity in Canadian law goes back to R. v. Perka, [1984] 2 S.C.R. 232, where Dickson J. (as he then was) focused upon the injustice involved in punishing someone for a choice to break the law when that person really had no true choice at all. Dickson J. explained, at p. 250:

At the heart of this defence [of necessity] is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.

See also: R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 29; R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at paras. 48-56, leave to appeal refused, [2015] S.C.C.A. No. 497.

[32] There are three elements to the defence of necessity: (1) the accused was faced with an urgent situation involving “clear and imminent” peril; (2) there was “no reasonable legal alternative” to the accused breaking the law; and (3) there exists a “proportionality between the harm inflicted and the harm avoided” by the accused: see R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at paras. 28-31. Once the defence shows that there is an air of reality to each element of necessity, the onus shifts to the prosecution to disprove one or more of the essential elements of the defence beyond a reasonable doubt: Perka, at pp. 257-58.

[33] The appellant’s evidence in-chief was directed at these three elements of necessity. She explained the significant fear she was in from the moment that Chris entered her car, grabbed her leg, and would not hand over her phone. This fear was combined with what she said was Mr. Flaherty’s aggressive behaviour, which included him yelling at her to move her car. The fear only escalated when she got to the end of the alleyway, realized it was a dead end, and another man entered her car through the driver’s side window. In short, she was surrounded by four men at the end of an alleyway with no way to easily escape. That is why she says that she did what she did.

[34] This was a very different story from what the Crown witnesses told. Accordingly, much turned on the trial judge’s assessment of the appellant’s credibility.

[35] It is against that backdrop that we now look to how the cross-examination of the appellant unfolded and what ensued after.

The Cross-Examination: Using Silence as a Sword

[36] The right to silence exists at common law and is conferred by s. 7 of the Canadian Charter of Rights and Freedoms: see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42; R. v. Hebert, [1990] 2 S.C.R. 151, at p. 164. With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility: Turcotte, at paras. 48-50. Indeed, to do so would render the right to silence into an “illusory right”, converting the decision not to speak to the police into a sword from which an inference of guilt could be taken: Turcotte, at para. 44. In other words, taking guilt from silence has the effect of transforming the right into both a “snare and a delusion”: R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1316.

[37] Accordingly, leaving aside exceptions to the rule, such as an alibi defence, the prosecution cannot suggest that the accused’s silence prior to trial informs the veracity of the accused’s testimony at trial: see R. v. Poirier (2000), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 18. To do so would clearly turn the right to silence into a snare by placing the accused in an intolerable situation of having asserted a constitutional right to silence, only later to learn that an inference of guilt could be taken from the assertion of that right.

[38] This is exactly what happened here: the appellant’s assertion of her right to silence was transformed into evidence against her.

[39] During her evidence in-chief, the appellant testified about the alleged attack that she says she endured prior to driving home. She did not testify about any communication that she had with the first police officer she encountered after that attack, other than to say generally that she spoke to Cst. Thompson when she arrived home that night. To be sure, during her evidence in-chief, the appellant did not suggest that she told Cst. Thompson about the attack.

[40] During cross-examination, the appellant was challenged on the fact that she had not told Cst. Thompson about the alleged attack. For instance, the trial Crown questioned the fact that the appellant did not:

“run right over” to the police officer parked at her home and say “oh, my God, like, these men were just attacking me”;
“get out of [her] car to go let [the officer] know” about the attack;
say to the officer “oh my God, I was attacked” or “oh my God, I’m so glad to see you. I was attacked.”

[41] The inference to be taken from the trial Crown’s questioning was unmistakable. If the appellant was telling the truth about having been attacked – an attack that was the very foundation for her assertion of necessity – then she would have told the first police officer she saw about the attack. To the trial Crown, the appellant’s failure to tell Cst. Thompson about the attack demonstrated that her trial evidence on this point must be an invention.

[42] Lest there be any doubt about whether this was the underlying purpose of the cross-examination, the trial Crown acknowledged that this was the purpose. Following the appellant’s evidence, the trial Crown sought to reopen the Crown’s case to recall Cst. Thompson to testify about what, if anything, the appellant had said about the attack. We will address that application later, but for now, this is what the trial Crown said during submissions made in favour of that reopening application:

The whole purpose of the cross-examination was to point out that if in fact what she was saying is true, she would have said something to the officer. [Emphasis added.]

Clearly, this was a prohibited purpose that transformed the right to silence into a sword.

[43] Respectfully, the trial Crown’s misunderstanding of the right to silence was also made clear during closing submissions:

There is no way that if this happened the way she said it did, that she wouldn’t have told Constable Thompson immediately. That she wouldn’t have gotten right out of her car, run over and banged on his window.

[44] The point is that the events of the evening could have happened exactly as the appellant recounted and she could have exercised her right to silence and chosen not to tell Cst. Thompson anything about those events. No adverse inference can be taken from exercising the right to silence.

[45] The respondent makes one submission in response to this issue. The respondent argues that it was the appellant who opened the door to the trial Crown’s approach to the appellant’s silence and, therefore, she cannot now complain about the way it unfolded.

[46] The respondent points to the following testimony as the purported opening.

[47] Prior to the impugned questioning starting, the appellant was asked multiple questions designed to reveal her degree of intoxication. When asked about whether she was having difficulty standing up during her interactions with Cst. Thompson, the appellant answered:

A: When I got out of the vehicle, the door was hard to open with Officer Thompson and I had dropped my lighter, and I put it on top that was the only time. And at that point, I was extremely distraught, emotional, scared and I told him. He said, are you okay? And my answer was no, no, no.

Q: Sorry, you told him no, no, no?

A: Yes.

Q: Okay.

A: No, I’m not okay.

Q: Okay. So, we’ll come back to that in a moment. [Emphasis added.]

[48] The respondent argues that the underlined three words – “I told him” – should be read as the appellant voluntarily suggesting that she had told Cst. Thompson about the attack. Having raised the matter, the respondent maintains that the appellant opened the door to the impugned cross-examination that ensued.

[49] Respectfully, we do not read those three words – “I told him” – as generously as the respondent.

[50] Read on their own and in context, there is nothing in those three words that would suggest the meaning proffered by the respondent. The fact is that “I told him” could be read in any number of ways and it is entirely unclear what the appellant meant by them. What is clear, though, is that nowhere in the lead up to that statement, or after that statement, was the alleged attack being discussed. If anything, read in the context of the Crown’s follow-up question, it would appear that the trial Crown understood the appellant to be saying that she told Cst. Thompson, “no, no, no”, a statement that Cst. Thompson agreed that the appellant uttered.

[51] Read in its full context, the cross-examination leads to only one conclusion: it was the trial Crown who raised the issue of the appellant’s silence about the attack. The cross-examination conflicted with her right to silence.

[52] What should we make of the fact that there was no objection to the improper cross-examination?

[53] Notably, the respondent fairly does not place emphasis on the failure to object or suggest that it can cure the difficulty that arose from the cross-examination. We agree that, unlike many cases, the failure to object in this case does nothing to help contextualize the seriousness of the prejudicial cross-examination that is complained about for the first time on appeal.

[54] The fact is that the approach taken, and its direct conflict with the appellant’s right to silence, did not seem to be on anyone’s radar at trial: not the radar of the Crown, the defence, or the trial judge. This is clear, not only in the absence of any objection to the Crown’s questioning, but in the full-steam-ahead approach that punctuated the end of the trial.

[55] After the trial Crown improperly and repeatedly suggested to the appellant that she would have told Cst. Thompson about the attack if it were true, the appellant eventually suggested that she had told the officer about the attack. That answer sent the trial off in a whole different direction.

[56] As mentioned previously, the trial Crown sought permission to recall Cst. Thompson to testify about whether the appellant had in fact told him about the attack. The trial judge allowed the application, concluding that the appellant’s “state of mind” was a “key” issue at trial and that whether she told Cst. Thompson about the attack would be relevant to that issue. Respectfully, the appellant’s exercise of her right to silence could not illuminate that issue. In any event, Cst. Thompson was recalled by the Crown and denied that the appellant had said anything about the attack.

[57] The appellant was then permitted to reopen her case and call another officer, Staff Sgt. Mountsteven, who she had spoken to the morning following her arrest. That officer testified that she had in fact told him about the attack.

[58] Then the trial Crown sought to reopen the prosecution’s case again. The trial Crown wanted to lead more evidence from officers who spoke to the appellant between the time that she spoke to Cst. Thompson and Staff Sgt. Mountsteven to demonstrate that she had not spoken to them about the attack. That application was denied.

[59] This flurry of activity at the end of the trial all arose from the initial improper questioning that had been put to the appellant during her cross-examination, questioning that turned her right to silence into a snare. With or without an objection, that questioning should not have been permitted.

The Reasons for Judgment Crystalize the Error

[60] This leaves the question of whether the reasons for judgment also reflect a misuse of the appellant’s silence. The appellant argues that the trial judge erred by drawing an adverse inference of guilt from the appellant’s silence. The respondent argues that is not so. To the contrary, the respondent maintains that the reasons for judgment reflect nothing more than a resolution of where the truth lay in the contradictory accounts given by the appellant and Cst. Thompson, a resolution that could properly inform the trial judge’s assessment of credibility.

[61] Leaving aside the fact that the evidence should never have been elicited in the first place, in our view, the reasons for judgment reflect an erroneous use of that evidence.

[62] In the reasons for judgment, the trial judge explained why he allowed the defence to reopen its case and call Staff Sgt. Mountsteven: “After PC Thompson testified for the second time, counsel for [the appellant] asked to call evidence in-reply to this testimony to rebut, presumably, any suggestion of recent fabrication. I allowed the application” (emphasis added).

[63] Respectfully, the use of the terminology “recent fabrication” to describe the Crown’s position with respect to the appellant’s defence, because it was revealed through the appellant’s testimony for the first time at trial, demonstrates the fundamental undermining of the right to silence. An accused has the right to remain silent. Barring limited exceptions, none of which are operative in this case, any suggestion that the accused is fabricating because she only speaks at trial, serves to undermine that right.

[64] It is in that context that the trial judge’s later comments must be considered:

The scenario described was that she was forced to break the law and obviously damage her car. She was completely innocent in all of this. Of course she would explain this to police at her first opportunity. Even though they waited for an extra ten minutes, waiting to be told where to go for the Intoxilyzer tests, PC Thompson said she did not mention anything along those lines to him. When the defence had the opportunity to address the point, through evidence, it came not from the female searching officer at the scene, the cell sergeant or the breath tech who spent 40 minutes with [the appellant]. Instead, it came from an officer who spoke with her several hours after her release, who had earlier emailed her and was calling to admonish her for name dropping. I do not believe that Ms. Guillemette told PC Thompson that she was attacked. She did not tell anyone that until the next day, after she had a chance to think about it. I find that she lied under oath when she made that assertion. [Emphasis added.]

[65] The appellant argues that the reasons demonstrate a clear breach of the right to silence: not only did the trial judge find the appellant lied under oath, he found that she fabricated the story because she did not immediately tell the police at the earliest opportunity about the attack, despite having time and opportunity to do so. The respondent says the reasons reveal the trial judge did nothing more than consider the appellant’s credibility against the conflict in the evidence as it arose between Cst. Thompson and the appellant. We agree with the appellant.

[66] Having concluded that, “of course”, if she had actually been attacked, the appellant would have told the first police officer she saw, and that she did not tell anyone until the next day, the trial judge rejected her evidence and convicted her. In making these findings, the trial judge’s reasons extended beyond the narrow conclusion that the appellant lied under oath and included the fact that, if her trial version of events were true, she would have told a police officer prior to having had a “chance to think about it.” This was a misuse of the right to silence, resulting in an unfair trial.

[67] As the trial judge himself described, the question of whether the appellant told the officer she was attacked was a “key” issue. Therefore, it cannot be said that the verdicts would have been the same without the errors relating to silence.