Tuesday, January 7, 2014

Exercise of partial right to silence ought not to be held against an accused

In R. v. Wilson, 2013 ONSC 7830 the Court held that a witness/accused who told the police only part of what happened ought not to be found less credible.  The reasoning was that a partial exercise of the right to silence ought not to be held against an accused.  Some might argue this encourages an accused to give police a vague story, bereft of all detail, with a more detailed concoction presented at trial.  The Court holds:

[16]       I am satisfied that in accordance with the legal principles set out in PalmerG.L., and R. v. Rivera2011 ONCA 225 (CanLII), 2011 ONCA 225, the trial judge erred in finding that the appellant was not a credible witness due to the fact that he chose to provide the police with some but not all of the details relating to the confrontation at the bar. In his statement to the police he used the term “verbal confrontation”. At trial he was very specific about what that verbal confrontation was. It is an error to find and conclude that by not providing those details in his police interview the appellant is not credible. As G.L. clearly states, the right to silence was 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. To conclude otherwise would lead to an unreasonable result. Where is the line drawn about how much detail an accused must give about a matter to the police when providing a statement? Does it mean that an accused who testifies at his trial can only provide as much detail as he told the police and if he provides further details during that trial testimony an adverse inference relating to his credibility would be drawn? It would be an error to proceed in that manner.
[17]       I agree with the Crown that a trial judge is entitled to consider a prior inconsistency made by an accused in his statement to the police. For example had the accused stated at trial that the confrontation started because the complainant drove into him with his car while he was standing close to the car or if the accused had testified that the confrontation started because the complainant tripped him and he fell, then those explanations are inconsistent with the police statement stating the confrontation was a “verbal confrontation”.
[18]       However in the case at bar the trial judge uses the lack of detail as to what the verbal confrontation was to draw an adverse inference against the accused.

[19]       The appellant’s right to silence cannot be rendered meaningless in such circumstances. The Crown readily acknowledges that it is not her position that an accused has to say everything when he or she chooses to speak to the police. The Crown argues, however, that in not providing sufficient detail about a portion of his statement as it relates to the events in question, that omission can be considered by the trial judge as an inconsistency affecting an accused’s credibility. I cannot agree with that submission and it is contrary to the legal principles set out in PalmerG.L., and Rivera.

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