Court File and Parties
R. v. Salifu, 2018 ONSC 6947
COURT FILE NO.: CR-17-0000422
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
HASSAN SALIFU
RULING
BEFORE THE HONOURABLE MR. JUSTICE D.E. HARRIS
on October 25, 2018, at BRAMPTON, Ontario
APPEARANCES:
A. Esson Counsel for the Provincial Crown S. Ferrone Counsel for the Provincial Crown J. Kaldas Counsel for Hassan Salifu R. Wong Counsel for Hassan Salifu
RULING
R. v. Salifu, 2018 ONSC 6947 THURSDAY, OCTOBER 25, 2018
HARRIS J: (ORALLY)
The Crown in her closing to the jury stated, according to the written script she helpfully handed out prior to beginning, at page 2 and 3,
"Sergeant Quashie specifically asked Mr. Salifu on video 'Are you saying it was accidental?'"
On to page 3,
"Mr. Salifu did not respond. In fact, at no time did Mr. Salifu ever say or even suggest to the first officers on the scene, to the 9-1-1 operator, his message to his friend Jermaine, in his Facebook post, during his statement to police or anywhere else that we know of that his mother had assaulted him or threatened him, that she had fallen, or that she had been injured by accident. You will also remember, ladies and gentlemen, that Mr. Salifu told Sergeant Quashie on video that he had not misled Quashie in any way during the videotaped statement."
In her peroration at page 19, the Crown planned to say, before the accused's outburst closed court down for the day,
"There is no evidence that any of this was an accident. During Mr. Salifu's interview, Sergeant Quashie specifically asked him, 'Are you saying it was accidental?' Mr. Salifu did not reply. He did not say at any time during his multi-hour interview that he did not intend to kill his mother or that any of his mother's injuries were caused by accident."
The jury did not hear this passage but did hear the earlier one on Thursday, October 18th, 2018 during the Crown's abbreviated first closing, interrupted by the accused's in-court outburst. In the full closing delivered October 23rd, 2018, the Crown deleted both of these passages.
In my view, these Crown arguments violate a long line of well-known judicial authority:
see R. v. Poirier, [2000] O.J. No. 2292, 133 O.A.C. 352 (Ont. C.A.), at para. 18; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 (S.C.C.); R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1 (Ont. C.A.).
Justice Fairburn put it well in the case of
R. v. Kovacevic, 2017 ONSC 193, [2017] O.J. No. 119:
The question is whether an accused who has said some things to the police, but not others, can be impeached by what he did not say. In R. v. L.(G.), 2009 ONCA 501 (Ont. C.A.), at para. 39, Blair J.A. held that regardless of whether an accused chooses to speak during a police interview, he retains the right to remain silent on issues of his choosing. The right to silence is not ‘extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely.’
A cross-examination of the accused designed to coax the jury to draw an adverse inference from failing to say something in the police statement, is also improper: see Hill at para. 46.
Although many of the cases deal with cross-examination of the accused, the principle is not confined to that context. In fact, it is much more serious than a matter of credibility when the words not said are used, as in this case, to infer guilt directly: see Turcotte and Poirier and R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.), at 338-344.
I should note that in Hill, Justice Doherty approved cross-examination on omissions in the police statement versus testimony on the witness stand: see paras. 43-48. This is simply conventional cross-examination on a prior inconsistent statement, and as long as it is confined to credibility, is perfectly admissible.
The ultimate issue which the jury must decide here is whether the killing was intentional. In her closing argument, the Crown relies on what the accused did not say in his statement to the police. He did not say that the killing of his mother was accidental. He did not say that the killing was unintentional.
The Crown's argument is a powerful one. If the killing was accidental or unintentional, it would make perfect sense for the accused to tell the officer this when he was first interviewed. It would mitigate the stigma of the killing. That he did not, tells strongly against him and tends towards a murder verdict.
However, the problem is that this compelling argument is a clear violation of the right to silence, as established in the cases. It would be very serious error, jeopardizing the fairness of the trial to leave this uncorrected.
For these reasons, I have crafted a curative instruction to the jury, taking the Crown's argument away from them. Although it was only given during the first abortive closing, the jury might still recall it.
Certificate of Transcript
THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from recordings made herein to the best of my skill and ability.
“Original signed by ACT” Teresa Tore AUTHORIZED COURT TRANSCRIPTIONIST
FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)
I, Teresa Tore, certify that this document is a true and accurate transcription of the recording of R. v. Hassan Salifu in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, taken from Recording No. 3199_404_20181025, which has been certified in Form 1.