SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 159/10
DATE: 20120416

RE: R. v. Vincenzo Rigillo

BEFORE: M.A. Code J.

COUNSEL:
Margaux Peck, for the Appellant
Carmel Penney, for the Respondent

HEARD: April 12, 2012

ENDORSEMENT

[ 1 ] The Appellant Vincenzo Rigillo (hereinafter Rigillo) was convicted of refusal to provide a roadside breath sample, contrary to ss. 254(2) and (5) and 255 of the Criminal Code . He was sentenced to a fine of $1,000 and the mandatory one year driving prohibition was imposed.

[ 2 ] Rigillo appeals to this Court from his conviction only. He alleges that the trial judge, Ritchie J., impermissibly used his silence against him as evidence of guilt. Rigillo had not suggested, in his roadside encounter with the police, that there was any reason or explanation for his failure to provide a suitable sample. He also failed to testify on a s.7 Charter of Rights motion that he brought at trial. Finally, he failed to testify in his own defence at trial. It is submitted that the trial judge used his silence on all three of these occasions as evidence of guilt, in violation of the right to remain silent.

[ 3 ] I am satisfied that there is no merit to any of these arguments and that the appeal should be dismissed.

[ 4 ] The trial took place in one day, on November 9, 2010, and it involved a blending of the Crown’s case on the merits, together with the defence Charter motion. The Charter motion alleged a violation of s. 7 on the basis of lost evidence, that is, a failure by the police to preserve the two mouthpieces used for the roadside breath samples and a failure by the Crown to produce and disclose them. The Crown called the two arresting officers. They had both made roadside demands for breath samples and both had produced and tested a new mouthpiece, prior to the various unsuccessful attempts by Rigillo to provide a suitable sample. Defence counsel cross-examined the officers, trying to establish the possibility that the two new mouthpieces might have been cracked and that this might explain Rigillo’s failure to provide a suitable sample. The only evidence called by Rigillo on the Charter motion was the admitted correspondence between the Crown and the defence, seeking and refusing production of the two mouthpieces. Rigillo did not testify on the motion in order to suggest that the mouthpieces may have been cracked. In addition, no defence evidence was called on the trial proper.

[ 5 ] In closing submissions, counsel addressed both the s. 7 Charter issue and the merits of the case. Ritchie J. then delivered two separate and distinct sets of Reasons. First, he addressed the Charter motion and dismissed it. Then he addressed the merits of the case and found Rigillo guilty. In the course of these two sets of Reasons he referred, in somewhat different ways, to Rigillo’s failure to testify and/or to his failure to give any explanation at the roadside for his inability to provide a suitable sample. It is these two passages in the two sets of Reasons that are said to amount to reversible error.

[ 6 ] Before analyzing what Ritchie J. actually said, and whether it violated the right to remain silent, it should be noted that the Crown brought out evidence from both officers as to Rigillo’s roadside conduct, including the fact that he offered no explanation for his inability to provide a suitable sample. At the end of the first officer’s examination-in-chief, the following exchange occurred:

Q. At any time did Mr. Rigillo offer you an explanation as to why he was not able to provide a sample into the machine?

A. No, he did not.

Q. Did he make any complaint about any medical condition?

A. No, he did not.

In the course of the second officer’s account as to what happened at the roadside, the following evidence emerged:

I also asked the suspect if he had any health issues, bronchitis, or anything else like that, and he said to me, “No, none. I just want to go home”.

[ 7 ] No objection was made to the Crown eliciting this evidence, nor could any objection have been made. In a case of refusal to provide a roadside breath sample like this one, where the accused makes various unsuccessful attempts to provide suitable samples over a period of time, the issue is whether these were genuine or feigned attempts. The entire course of conduct, including any utterances or explanations for the difficulties in providing a sample, is evidence relating to the actus reus . As Molloy J. put it in R. v. Morrison , 2006 Can LII 12722 (Ont. S.C.J.):

[A]ny statements made by Ms. Morrison as to the process of attempting to give the breath sample are admissible to demonstrate whether she was really trying or whether there was some valid basis for her not being able to comply . [Emphasis added.]

Also see: R. v. Rivera, (2011), 2011 ONCA 225 , 270 C.C.C. (3d) 469 (Ont. C.A.); R. v. Bleta , 2012 ONSC 1235 .

[ 8 ] In this evidentiary context, Ritchie J. gave his Reasons for dismissing the s. 7 lost evidence motion. He began by instructing himself correctly on the law relating to this particular form of Charter violation. He then reviewed the testimony of the two officers, to the effect that they had both produced new mouthpieces and tested them by blowing through them in order to ensure that they were working properly. They also observed Rigillo failing to make a proper seal around the mouthpiece, with the result that air escaped. Finally, the trial judge noted that the cross-examination of the officers, concerning the possibility of a crack in the two new mouthpieces, was entirely speculative. At this point in his Reasons, Ritchie J. made the first comment that is said to violate the right to remain silent:

On the question of other evidence, as I say, we do have the direct evidence from two police officers that both of the mouthpieces used to test the defendant were in good working order. The defendant was also of course present at the roadside and could have elected to testify on the voir dire about the mouthpiece.

I note also from the evidence that the defendant did not say anything to the officers at the roadside about having a problem with the mouthpiece. In fact, the defendant did not say that he had any other problem that would prevent him from providing a breath sample.

[ 9 ] The trial judge went on to find that the two officers were credible and that their evidence was uncontradicted. In light of the credible and unchallenged evidence to the effect that the two new mouthpieces were in proper working order, Ritchie J. dismissed the s. 7 Charter motion.

[ 10 ] He then turned to the merits of the case and twice stated “the fundamental rule” that the burden is on the Crown to prove all elements of the offence beyond reasonable doubt. He repeated his findings that the two officers were credible, and set out succinct reasons in support of this conclusion. At this point, he made the second impugned comment which is alleged to violate the right to remain silent:

I think I mentioned on the voir dire [the Charter motion] the defence elected to call no viva voce evidence. There was documentary evidence at trial. There was no evidence. The defence elected to call no evidence.

[ 11 ] The trial judge concluded by stating that “the onus does not shift to a defendant under any circumstances” and that the Crown had discharged its burden on “the totality of the evidence”.

[ 12 ] In my view, neither one of the two impugned comments violated the right to remain silent. The first comment was made on the Charter motion where the burden of proof is on the accused. The right to remain silent is singularly inapplicable in this context. In the leading case, R. v. Noble (1997), 114 C.C.C. (3d) 385 at 416-417 (S.C.C.), Sopinka J. gave the majority judgment and explained how the right to remain silent is linked to the presumption of innocence and prevents the accused’s silence, both at the investigative stage and at trial, from being used as evidence of guilt:

The right to silence is based on society’s distaste for compelling a person to incriminate him or herself with his or her own words. Following this reasoning, in my view the use of silence to help establish guilt beyond a reasonable doubt is contrary to the rationale behind the right to silence. Just as a person’s words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt . To use silence in this manner is to treat it as communicative evidence of guilt.

If silence may be used against the accused in establishing guilt, part of the burden of proof has shifted to the accused. In a situation where the accused exercises his or her right to silence at trial, the Crown need only prove the case to some point short of beyond a reasonable doubt, and the failure to testify takes it over the threshold. The presumption of innocence, however, indicates that it is not incumbent on the accused to present any evidence at all, rather it is for the Crown to prove him or her guilty. Thus, in order for the burden of proof to remain with the Crown, as required by the Charter , the silence of the accused should not be used against him or her in building the case for guilt . [Emphasis added.]

[ 13 ] The trial judge’s comments on the Charter ruling, noting Rigillo’s failure to testify or to provide some explanation at the roadside, did not offend the above principles because this evidence or lack of evidence was never used “to help establish guilt” or “in building the case for guilt”. In a context where the burden of proof is on the accused, for example, on a Charter motion or where a defence of mental disorder is raised, the leading authorities are to the effect that the right to silence has limited application. In R. v. Worth (1995), 98 C.C.C. (3d) 133 at 140 (Ont. C.A.) the trial judge instructed the jury that they could draw an adverse inference from the accused’s refusal to let a Crown psychiatrist assess his defence of insanity. The Court of Appeal agreed with this instruction and stated:

Having put his sanity in issue, we do not think the appellant could preclude the jury from drawing an adverse inference from his refusal to speak to the Crown psychiatrist. An accused’s right to silence is not absolute. It is protected in terms of s. 7 , that is, an accused cannot be deprived of his right to silence except in accordance with the principles of fundamental justice. Since the appellant put his sanity in issue and had the burden of proving his mental disorder, we do not think that the trial judge’s comments contravened the principles of fundamental justice . [Emphasis added.]

Also see: R. v. Sweeney (1977), 35 C.C.C. (2d) 245 (Ont. C.A.); R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.); R. v. Charlebois (2000), 148 C.C.C. (3d) 449 (S.C.C.).

[ 14 ] I am not convinced that Ritchie J. actually drew an adverse inference from the accused’s silence, as opposed to merely noting the absence of any evidence to contradict the police officers’ account. In any event, in the context of the Charter motion, the principles enunciated in Noble concerning using silence to prove guilt simply have no application. The burden is on the accused on the Charter motion, and his guilt is not at issue.

[ 15 ] Turning to the second comment, this was clearly made in the context of the trial proper where the burden was exclusively on the Crown and where the principles enunciated in Noble are fully in force. However, the trial judge’s comment cannot reasonably be read as using Rigillo’s silence as evidence of guilt. He had already stated that the burden was on the Crown and he had made a finding that the Crown’s evidence from the two police officers was credible. Their evidence proved all the essential elements of the roadside refusal offence. In noting the absence of any defence evidence, to contradict the officers’ accounts, Ritchie J. was simply observing that the Crown’s case was essentially unchallenged. This kind of statement is common in judge alone trials, where the Crown calls credible evidence proving guilt and no defence evidence is called. Indeed, comments to this effect were specifically approved of in Sopinka J.’s judgment for the majority in R. v. Noble , supra at 417-418:

Some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt . If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn’t, the Crown’s case prevails and the accused will be convicted.

The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict . [Emphasis added.]

[ 16 ] I am satisfied that the trial judge’s comment on the absence of any defence evidence or explanation, after having accepted the Crown’s case, was no more than what Sopinka J. permitted in Noble . I note that the four dissenters in Noble would have permitted much greater use of the accused’s silence.

[ 17 ] For all these reasons, the appeal is dismissed.

M.A. Code J.

Date: April 16, 2012