



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred
    to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

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

DATE: 20150123

DOCKET: C54693

Gillese and Lauwers JJ.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

W.L.

Appellant

Keith E. Wright, for the appellant

Greg Skerkowski, for the respondent

Heard: December 18, 2014

On appeal from the conviction entered on May 4, 2011 by
    Justice Gregory Mulligan of the Superior Court of Justice, sitting with a jury.

Speyer J. (
ad hoc
)

[1]

The appellant was
    convicted by a jury of sexual assault and sexual interference in relation to
    R.A., his step-daughter.  He seeks to set aside his convictions and has argued multiple
    grounds of appeal. One ground of appeal has merit. For the reasons that follow,
    I would allow the appeal and order a new trial on the basis that Crown
    counsels cross-examination of the appellant on his post-arrest silence
    exceeded permissible limits. Further, the absence of a clear jury instruction
    on this issue is fatal to upholding the jury verdict.

FACTS

THE ALLEGED INCIDENTS

[2]

R.A. was 9 years
    old when the final incident of sexual abuse is alleged to have occurred. The
    allegations of the appellants sexual misconduct were triggered by events that
    took place on the evening of June 23, 2009.  The complainant testified that she
    went to bed that evening around 9:30 p.m. Her mother, J.A., was at work, and
    her two brothers, C.A. and Z.A., were in other rooms of the family home. The
    appellant entered her bedroom and proceeded to put his hand down the
    complainants underwear touching her vagina. The appellant subsequently left
    the complainants bedroom but not before admonishing her not to tell anyone.

[3]

The complainant
    was unable to sleep: she went into her brother C.A.s bedroom and told him what
    had occurred. C.A. testified that when his sister came into the bedroom, she
    was crying. Initial attempts to make telephone contact with their mother were unsuccessful.
     J.A., being at work, was unable to answer her cell phone.

[4]

C.A. and the
    complainant enlisted the assistance of their older brother Z.A who was in
    another room of the house watching television. Eventually, Z.A. succeeded in contacting
    his mother, and told her of his sisters complaint.

[5]

J.A. received her
    sons call at work at about 12:30 a.m.  She returned home, woke up her daughter,
    and had a brief conversation with her. Without waking the appellant, she
    gathered up her children, left the family home, and phoned the police from her
    truck. She met briefly with the police in the parking lot of a No Frills store.
    Arrangements were made with the authorities for the complainant to come to the
    police station the following morning to provide a video-taped statement.  J.A.
    and her three children stayed at a motel for the remainder of the evening.

[6]

In addition to the
    events of the previous evening, the complainant disclosed additional acts of
    sexual abuse when she provided her video-taped statement.  The complainants
    evidence was that the appellants sexual misconduct started, albeit
    infrequently, in 2006 when the family lived in Woodbridge, and continued on a
    more frequent basis after the family moved from Woodbridge to their home in
    Richmond Hill.

THE

APPELLANTS

STATEMENT


[7]

On the same day
    that R.A. provided her video-taped statement, the appellant was formally
    arrested at his place of employment, advised of the precise charges he was
    facing and given his right to counsel. He was transported to a York Region
    police station and, again at the station, advised of the nature of the charges.
    What he was not told until later that evening was the identity of the
    complainant.

[8]

On the evening of
    his arrest, the appellant was interviewed for two and one half hours by the
    officer in charge of the investigation. The interview was video-taped. It was
    an agreed statement of fact at trial that no police officer involved in the
    investigation threatened or coerced the appellant in any manner, or offered any
    promises or inducements to provide a statement.

[9]

Prior to beginning
    the interview, the police attempted to telephone the appellants personal
    lawyer. Although a message was left on his answering service, there was no
    response. Accordingly, a call was placed to duty counsel. Duty counsel spoke with
    the appellant for about five minutes prior to the interview.

[10]

As a matter of
    strategy, the officer-in-charge conducted the interview with the appellant in a
    manner that did not immediately identify R.A. as the complainant. Near the
    conclusion of the interview, the officer advised the appellant that it was his
    step-daughter who was the complainant.  The appellant acknowledged touching his
    step-daughter on two or three occasion but denied that it was for a sexual
    purpose. He provided no further details of the touching or its purpose. The
    appellant specifically denied any acts of oral sex or sexual intercourse.

DID THE CROWNS CROSS-EXAMINATION
    RENDER THE TRIAL UNFAIR?

Context

[11]

A brief
    description of the appellants defence and a digest of the examination-in-chief
    and the cross-examination are necessary to flesh out this issue.

[12]

The appellant
    testified at trial. At the heart of his defence was a denial of touching his
    step-daughter for a sexual purpose. The appellant denied ever touching the
    complainants vagina: he testified that he touched the complainant in the
    rectal area of her body on three occasions.  The purpose of the touching, on
    each occasion, was to inspect and deal with a problem the complainant experienced
    with pinworms. The appellants evidence was that the complainants mother was
    aware of her daughters problem. He explained that he attended a pharmacy, at
    the complainants mothers direction, to purchase the necessary medication to
    address the problem. As noted, these details that provided an innocent
    explanation as to the nature of the touching were not provided to the
    investigating officer during the interrogation.

[13]

It is apparent
    from the record that, as a tactical matter, trial counsel decided to address
    the failure of the appellant to provide this fuller explanation to the police
    during the interview. At the beginning of the appellants examination-in-chief,
    defence counsel posed the following questions that elicited the following
    answers:

Q: Did you touch R.A.?

A: Yes.

Q: And was it sexual?

A: No.

Q: Okay, did you explain yourself
    in the video with respect to the touching?

A: No. I did not.

Q: And why is that the case. Why
    did you not do that?

A: Um, I was afraid at the time. I
    was trying to make sense of something that did not make sense.  I couldnt
    explain it at the time. I was- my mind was running.

Q: Okay, Well now is your chance. So please tell us about the
    touching of R.A.

A: The only time I touched R.A. was to check for pinworms.
    There was never any type of sexual touching.

[14]

The appellant
    proceeded to testify in detail as to the circumstances of each occasion when he
    touched his step-daughter with respect to pinworms. Defence counsel then
    returned to the issue of why the appellant did not provide the police with a
    fuller account of the innocent nature of the touching:

Q: And in your statement, you didnt explain any of this.
    Correct?

A: I was scared at the time. Um, it was very confusing. Um, It
    seemed that things were being put to me rather than asking me. Sort of, more
    like a suggestion than a question. And trying to process what was going on,
    like I did say I touched her and at the time and at the time when I was
    thinking of it, it was the only time I remembered touching R.A.-that would-that
    could be in that area. I didnt have the opportunity at that time. Things were,
    like I said, very confusing. In retrospect- if I could do it all over again I-
    I likely would have said a lot more but it just- I was caught off guard.

[15]

Crown counsels
    cross-examination challenged the appellants credibility and specifically honed
    in on the appellants testimony as to why he did not provide the police, at the
    time of the interview, with an innocent explanation. Moreover, Crown counsel questioned
    the appellant on why it took two years, from interrogation to trial, to provide
    for the first time a fuller account as to the non-sexual nature of the touching.
    Further, Crown counsel cross-examined the appellant on his failure to tell the
    investigating officer about matters extraneous to the pinworm issue.  The
    following are samples of the cross-examination:

Q: Sir, you are at the police station. Youre charged with very
    serious crimes?

A: Yes.

Q: You finally break down and tell the police you touched R.A.,
    correct?

A: Yes.

Q:
You dont explain it. Dont you think its a good time to
    be explaining it
?

A: If I would have been able to talk at the time. I was very
    upset.

.

Q: You were able to talk there. Werent you?

A: Yes. Some.

Q:
So, you werent able to give an innocent explanation
?

A: No. I was able to talk but not explain everything that was
    running through my mind at that moment. It was all over the place.

.

Q: Sir, police are asking you why. You could have explained
    the quote/unquote, non-sexual aspect, but you didnt
. You didnt because
    there was no innocent explanation sir. None at all.

A: Yes, there was.

Q:
You have had almost two years and now you are telling us
    about?  Did it take you this long to make it up?

A: No, I didnt make anything up.



Q: Sir, youre with- in front of a police officer, youve been
    arrested for very serious charges. Correct?

A: Yes.

Q: You may have an explanation. Correct?

A: At the time, no. I wasnt sure what was going on.

Q:

Well is it because you took two years to get an
    explanation. Is that why
?

A: No, That came- that was after the fact.

..

Q: So does he (referring to an aspect of C.A.s evidence) say it
    two year after it happened like you say two years after it happened about the
    pinworms? Is that the same thing?

A: No.

.

Q: Now, sir, even at this time,
you didnt mention to the
    officer anything about J.A. stealing money from Garda. Nothing like that. You
    didnt think to mention that
.

A: Not at the time. No.

..

Q: Well, sir, this was the time, this was your chance, Im
    going to put it to you sir, to give an innocent explanation if you wanted to.
To
    tell the police about anything. Any trouble you were having with R.A. or her
    family
.

A: Yes.

.

THE POSITION OF THE PARTIES

[16]

The appellant
    argues that Crown counsels cross-examination of the appellant on his failure
    to give an innocent explanation to the police, at the time of his
    interrogation, trespassed on his right to silence. Further, he says the cross-examination
    of the appellant regarding the delay in waiting two years to provide an
    explanation, from the date of the police interview to trial, was improper and
    highly prejudicial. Counsel also contends that even if it was legally
    permissible, given the tactical decisions made by defence counsel at trial, for
    Crown counsel to question the appellant as to why he did not give an
    explanation in respect to pinworms in his statement to the police, the breadth
    of the cross-examination was a serious error. Finally, it is submitted that it
    was incumbent upon the trial judge to give a clear instruction cautioning the
    jury that the appellant had a right to silence when interrogated by the police,
    and that his failure to provide a fuller account of his conduct could not be
    used to infer guilt.

[17]

The Crown concedes
    that as a general rule, Crown counsel is not permitted to impeach the testimony
    of an accused based on his choice to remain silent. However, the Crown submits
    that this is an exceptional case because the appellant made a tactical decision,
    in advance of cross-examination, to explain why he did not provide a fuller
    explanation as to the nature of the touching. That is, the appellant chose to
    put in issue the reason why he did not say more to the police at the time of
    his interrogation. This decision opened the door for Crown counsel to cross-examine
    the appellant on this aspect on his testimony and could be taken into account
    by the jury in assessing the appellants credibility.

LEGAL PRINCIPLES

[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 accuseds
    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.

DISCUSSION

[22]

It is wrong to
    underestimate, and difficult to exaggerate, the importance of the right to
    cross-examine witnesses to demonstrate truth and test credibility in any
    criminal trial. From the perspective of an accused, the right to cross-examine
    witnesses for the prosecution, without significant and unwarranted
    constraint, is an essential component of the right to make full answer and
    defence:
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2.
    Similarly, Crown counsel is entitled to conduct a vigorous cross-examination of
    a witness, including an accused, as part of the truth finding function of the
    trial. Nevertheless, because Crown counsel performs a unique, quasi-judicial
    function, there are well-established constraints that limit the type of
    questions that may be asked of an accused on cross-examination.
[1]
One well-known limitation is that Crown counsel cannot ask questions that
    diminish an accuseds constitutional right to silence by inviting the jury to
    draw impermissible inferences as to guilt or credibility based on the exercise
    of that right.

[23]

I accept that Crown
    counsel was justified in asking the appellant questions concerning his
    explanation of the reasons he did not give a fuller account of the pinworm
    occurrences to the investigating officer. The essence of the appellants
    evidence was that he did not amplify upon his assertion that his touching of
    the complainant was for a non-sexual purpose because he was afraid and
    confused. The appellants silence on this point during his interrogation became
    a fact-in-issue, one raised by the appellant in his examination-in-chief. As
    the appellant had opened the door on this issue, Crown counsel was entitled
    to cross-examine the appellant on it within reasonable limits:
McNeill
,
    at paras. 34-35. It became a matter which the jury was entitled to take into
    account in assessing the appellants credibility.

[24]

Regrettably, the
    scope of Crown counsels 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 appellants 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.

[25]

In her all-out assault
    on the appellants post-arrest silence, Crown counsel did not limit her
    questioning to the failure to tell the police about the pinworm incidents. The scope
    of the cross-examination pertaining to the appellants silence was wide ranging.
    It included a failure of the appellant to tell the police about several collateral
    matters such as J.A.s alleged thefts from her employer.

[26]

While it is true
    that the appellants testimony opened the subject matter of his reason for not
    giving a fuller account of his pinworm explanation to the police, thereby
    opening the door to cross-examination on the issue, it is important that the
    scope of the cross-examination be confined to reasonable limits so as to
    minimize the potential for trial unfairness. I echo the wisdom of Moldaver J.A.
    (as he then was) in
McNeill
, where a similar situation arose, that it
    would have been preferable had Crown counsel not seized upon the appellants
    response to launch a full scale attack on his credibility: para. 35.

[27]

Even if it were
    determined that Crown counsels cross-examination fell within the boundaries of
    fairness, a proper instruction to the jury was of critical importance. There
    was no such instruction. The jury ought to have been told that they were
    entitled to take into account, in assessing the appellants credibility, all of
    his evidence, including his explanation of why he did not provide a fuller
    account of his conduct. The jury ought to have been cautioned, however, that the
    appellant had a right to remain silent, had a right to choose what to say and
    what not to say, and that his failure to provide a fuller explanation, from the
    time of his interrogation until trial, could not be used to assess his
    credibility at trial:
Palmer
, at para. 9. Further, the jury ought to
    have been told that the appellant was under no duty or obligation to disclose
    anything to the police and no adverse inference could be drawn against him from
    his failure to do so.

[28]

Because of the
    seriousness of the errors, it cannot be said the verdict would necessarily have
    been the same.  Thus, I am unable to invoke the curative proviso at s. 686(1)(b)(iii)
    of the
Criminal Code
, R.S.C. 1985, c. C-46.

[29]

Accordingly, I
    would allow the appeal and order a new trial.

Released:
    January 23, 2015 (E.E.G.)

C.M. Speyer J. (ad hoc)

I agree. E.E. Gillese J.A.

I agree. P. Lauwers J.A.





[1]
See: Robert J. Frater, 
The
    Seven Deadly Prosecutorial Sins
 (2001) 7
Can. Crim. L. Rev.
209;
    Robert J. Frater,
Prosecutorial Misconduct
(2009) at pp. 141-161; Suhail
    Akhtar, 
Improprieties in Cross-Examination
 (2004), 15 C.R. (6th) 236
.


