Friday, January 23, 2015

Right to silence

R. v. W.L., 2015 ONCA 37:

[18]       Certain principles that govern the right of an accused to remain silent post-arrest are in play in this appeal. Deeply embedded in our law is the principle that an accused person has the right to remain silent at the investigative stage of a prosecution as well as at trial: R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321, at para. 50. Accordingly, evidence of pre-trial silence cannot be used as positive evidence to infer guilt: R. v. Crawford, [1996] 1 S.C.R. 858, 96 C.C.C. (3d) 481, at para. 38. While a trier of fact may reject an accused's explanation as not being believable, and use that finding in assessing credibility, a trier of fact is prohibited from using the silence of an accused as a basis for drawing an adverse inference as to credibility: R. v. Palmer, 2008 ONCA 797, at para. 9.

[19]       Further, the constitutional right to remain silent is not extinguished when an accused chooses to speak to an officer with respect to some matters, but not others. That is, an accused cannot be cross-examined on matters on which he has chosen to remain silent: R. v. G.L., 2009 ONCA 501, 250 O.A.C. 266, at para. 39. 

[20]       An exception to the general rule prohibiting cross-examination on post-arrest silence occurs when an accused makes it an issue at trial: R. v. McNeill(2000), 48 O.R. (3d) 212 (Ont. C.A.), 144 C.C.C. (3d) 551; R. v. G.A.O. (1997), 200 A.R. 363 (Alta. C.A.), 119 C.C.C. (3d) 30; R v. M.C.W., 2002 BCCA 341, 165 C.C.C. (3d) 129. Importantly, however, it is incumbent upon the trial judge to instruct the jury as to the permissible and impermissible uses that can be made of such evidence. It is worth noting that even where the cross-examination was permitted as an exception to the general rule, a new trial was ordered in each of the three above cited cases, due to the failure of the trial judge to provide the jury with a proper limiting instruction.

[21]       Finally, another legal tenet is applicable in this appeal: there is no duty or obligation on any accused to assist the prosecution: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 333; R. v. M.B.P., [1994] 1 S.C.R. 555, at p. 578.


[24]       Regrettably, the scope of Crown counsel's cross-examination went beyond permissible limits. Particularly troubling are the questions asked of the appellant about his two year silence, from the date of arrest until trial, and the reason, during that period, that he failed to explain what he meant when he denied that the touching of the complainant was for a sexual purpose. These questions clearly implied that the appellant was under a duty to provide an explanation. Moreover, this line of questioning also suggested that the appellant's version of events was not credible on the basis it had not been proffered at an earlier date. It is the right of any accused to remain silent, and there is no duty or obligation to provide the authorities with any assistance either prior to or at trial.

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