





CITATION:
R. v.
Arruda
, 2011 ONCA 345



DATE: 20110503



DOCKET: C50185



COURT OF APPEAL FOR ONTARIO



MacPherson, Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Geral Couto Arruda



Appellant



David E. Harris, for the appellant



David Friesen, for the respondent



Heard: April 27, 2011



On appeal from the conviction entered by Justice M.G. Quigley
          of the Superior Court of Justice, dated December 10, 2008.



Epstein J.A.:



[1]

The appellant appeals his convictions after a trial by judge and
    jury for the crimes of perjury and attempt to obstruct justice.  The charges arose out of his testimony as a
    proposed surety at a bail hearing that took place in March 2007, in the course
    of which the appellant was asked And you have no criminal record? to which he
    answered No I dont.  In fact, he had a
    dated criminal record consisting of convictions between 1971 and 1995 for
    possession of stolen property, attempt theft, impaired driving and
obstruct
peace officer.

[2]

At the trial, the appellant, a 55 year old man originally
    from Portugal who was on disability for his alcoholism and who had finished
    only five years of school, gave evidence as to why he gave false testimony at
    the bail hearing.  He explained that at
    the time he answered the question, he did not know it was false.  He did not know he had a criminal
    record.  He believed that given the
    passage of time his record had been wiped clean.  In cross-examination he testified that had
    anyone asked him specifically if he had been convicted of impaired driving, he
    would have said yes, although he did not realize that a conviction for
    impaired driving gave him a criminal record.  The appellant also testified that he did not know that a criminal record
    was relevant to his qualifications as a surety.

[3]

The defence at trial was that, given
    the appellants various challenges, the Crown had not proven beyond a
    reasonable doubt that the appellant, when he gave the evidence about not having
    a criminal conviction, knew it was false and intended to mislead.

[4]

The argument on appeal is based on the trial judges answers
    to questions posed by the jury after four hours of deliberation  questions
    that focused on the use the jury could make of the appellants mental capacity,
    linguistic ability,
history
of alcoholism and
    understanding of the law.

[5]

The jury asked the following
    questions:

Can
    reasonable doubt be based upon questions relating to mental capacity or
    linguistic ability?

Can
    reasonable doubt be based upon the accused not understanding the law?  For example, criminal convictions do not
    translate to having a criminal record.

[6]

The trial judges answer to the first question included
    advising the members of the jury that:

a)

they were getting sidetracked in looking at mental
    capacity or linguistic ability;

b)

there was no not criminally responsible defence
    raised, but that the appellants memory is relevant to what he knew when he
    testified;

c)

linguistic ability was not an issue as there was no
    evidence that the appellant did not understand the question asked or his
    answer; and

d)

any
finding about the
    appellants memory should be based on the evidence presented, not speculation
    about alcoholics.

[7]

The trial judges answer to the second question
    included advising the jury that everyone in our law is presumed to know the
    law.

[8]

Shortly after answering the questions, the jury returned its
    verdict of guilty in relation to each offence with which he was charged.

[9]

Counsel for the appellant on this appeal, who did not
    represent him at trial, submits that these answers were wrong in law and
    effectively deprived the appellant of his only available defence, namely, that
    he lacked the
mens rea:
he did not
    intend to deceive.

[10]

We agree.

[11]

As to the first question, it was clear that the jury was
    seeking help with respect to the appellants mental capacity and linguistic
    ability, issues that could only relate to the appellants defence that he
    lacked the
mens rea
necessary for
    perjury.  Answering the question by criticizing
    the jury for being sidetracked through the introduction of the concept of an
    NCR defence was unresponsive and confusing. A correct answer should have dealt
    with the evidence with respect to the appellants ability with English and his
    difficulty in understanding and answering the question about whether he had a
    criminal record.

[12]

With respect to the second question, advising the jury that
    the appellant was deemed to know the law was, in our view, a fatal error.  The jury was asking whether the appellants
    mistaken belief that his criminal record was clean, though an error in
law,
could create reasonable doubt as to the appellants
mens rea
for perjury.  The trial judges answer that everyone is
    presumed to know the law, followed by a summary of the appellants evidence
    relevant to the issue of his understanding of his criminal record and  ending with what the trial judge described as
    evidence that was contradictory on this point, severely prejudiced the
    appellant.  The jury may well have
    understood the trial judge to mean that the appellant was deemed to know that
    his criminal record still existed.

[13]

Through the answers to these questions, the trial judge, in
    effect, instructed the jury that knowledge had been proven and the appellant
    was guilty.  It is difficult to see how
    the jury could do other than convict in the face of this instruction.

[14]

Given our conclusion that the trial judge erred in responding
    to the jurys questions in the manner he did, it is unnecessary to deal with
    the appellants motion to introduce fresh evidence.

[15]

For these reasons, the appeal is allowed, the conviction is
    set aside and a new trial ordered.

RELEASED:

JCM                                                J.C.
    MacPherson J.A.

MAY -3 2011                                R.A.
    Blair J.A.

Gloria
    Epstein J.A.


