Court File and Parties

CITATION: R. v. Shawanda, 2017 ONSC 5559

COURT FILE NO.: CR 16-0029

DATE: 20170919

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Zakkary Shawanda

BEFORE: The Honourable Mr. Justice M. Varpio

COUNSEL: David Beaton, Counsel for the Crown James Weppler, Counsel for the accused

HEARD: September 12 - 19, 2017

Endorsement

[1] These are my reasons for not allowing the jury to consider the cross-examination of the accused on his answers regarding his right to silence as well as the reasons for not allowing the jury to consider lesser and included charges on the indictment.

Right to Silence

[2] An accused person’s right to silence is fundamental to our criminal justice system. An accused need not say anything to police upon arrest, or otherwise. This principle has been enshrined in our justice system in a variety of cases and need not be fully canvassed here.

[3] Further, the right to silence extends to situations where an accused person has certain positive defences at their disposal. For example, in R. v. Hill [2015] O.J. No. 4758, the accused was found guilty of second degree murder. Part of the accused’s defence to the charges included the fact that the victim was allegedly abusive towards the accused. Crown counsel cross-examined the accused on the accused’s failure to describe acts of abuse to the police in his statement to them. The trial judge permitted the jury to consider the accused’s failure to mention this abuse as an indicia of guilt.

[4] In overturning that decision, Doherty J.A. of the Ontario Court of Appeal stated at paragraphs 43 to 46:

With few exceptions, an accused's exercise of his right to silence when questioned by the police cannot be used as circumstantial evidence of guilt or to impeach the credibility of the accused's trial testimony: R. v. Turcotte (2005), 2005 SCC 50, 200 C.C.C. (3d) 289, at paras. 46-58; R. v. Palmer, 2008 ONCA 797, [2008] O.J. No. 4753, at para. 9. An accused who testifies can, however, be cross-examined on prior inconsistent statements, assuming those statements are admissible: R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687, at para. 41. Cross-examination on a prior inconsistent statement may be used to impeach the credibility of the accused, or in an attempt to have the accused adopt the prior statement as true.

Counsel for the appellant submits that cross-examination on inconsistencies between a prior statement and trial testimony cannot extend to cross-examination on omissions from the prior statement. On this approach, Crown counsel's cross-examination of the appellant about his failure to mention Ms. General's verbal abuse and assault would infringe the appellant's right to silence, but Crown counsel's cross-examination on the inconsistency between the appellant's recollection of the act of strangling Ms. General in his statement and his inability to recall any of those details at trial would be appropriate.

With respect, the distinction counsel attempts to draw is not tenable. Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details.

The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused's testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused's silence when questioned by the police, the cross-examination is inappropriate. Sometimes, both purposes may be in play. A trial judge can refuse or limit cross-examination on the prior statement when there is a legitimate concern that the cross-examination may trespass improperly on the accused's right to silence. The trial judge may also give a limiting instruction cautioning against misuse of the right to silence if the cross-examination merits that instruction.

[5] In the case before me, the case hinges upon the accused’s state of mind when he non-fatally stabbed the victim. The cross-examination focused upon the accused’s knowledge of the victim’s propensity for violence prior to speaking with police and, despite same, the accused’s failure to advise police of the fact that the accused claims to have acted in self-defence. The cross-examination did not attempt to draw out inconsistencies in the statement to police and the evidence in court. Instead, it appeared to focus on the fact that the accused was more likely to be guilty since he did not mention these aspects of self-defence to the police. Accordingly, the tone of the cross-examination was such that it “crossed the line” as described in Hill.

[6] As a remedy, defence sought an instruction pursuant to Hill indicating that the jury could make no use of that portion of cross-examination. I agreed to same and included a mid-trial instruction to the jury as well as an instruction to that effect in my final instructions.

Lesser and Included Offences of Attempt Murder

[7] Unless an indictment is drafted specifically so as to include lesser and included offences, there are no lesser and included offences in attempted murder simpliciter: R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371 at paras. 25 to 32; R. v. Arnaout 2015 ONCA 655, [2015] O.J. No. 5050 at paras 74 to 81; R. v. Pelletier, 2012 ONCA 566 at paras 105 to 108.

[8] In this case, the Crown chose to draft the indictment as follows:

That he [Zakkary Shawanda] on or about the 18th day of August 2014, at the Village of Wikwemikong, in the Province of Ontario, unlawfully did attempt to murder Sean Connally Shawanda, contrary to Section 239 (1)(b) of the Criminal Code of Canada.

[9] Given the drafting of the charge, there are no lesser and included offences upon which a reasonably instructed jury could be charged.

[10] The Crown did not seek to amend the count before the Court. Accordingly, the jury will not be instructed regarding any lesser and included offences.

The Honourable Mr. Justice M. Varpio

Date: September 19, 2017