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 Palmer, G.L., and R. v.
Rivera, 2011 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 Palmer, G.L.,
and Rivera.
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