R. v. Crawford, [1995] 1 S.C.R. 858
Clifford Crawford Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Crawford
File No.: 23711.
1994: November 4; 1995: March 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right to silence ‑‑ Right to make full answer and defence ‑‑ Appellant and co‑accused charged with second degree murder ‑‑ Each placing blame on other ‑‑ Appellant making no statement to police but testifying at trial ‑‑ Appellant being cross‑examined on his pre‑trial silence ‑‑ Whether appellant's right to silence infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 7.
Criminal law ‑‑ Evidence ‑‑ Joint trials ‑‑ Right to pre‑trial silence ‑‑ Right to make full answer and defence ‑‑ Appellant and co‑accused charged with second degree murder ‑‑ Each placing blame on other ‑‑ Appellant making no statement to police but testifying at trial ‑‑ Appellant being cross‑examined on his pre‑trial silence ‑‑ Whether cross‑examination violating appellant's right to silence ‑‑ Whether trial judge erring in instructions to jury on use to be made of evidence that appellant had not given statement to police ‑‑ Canadian Charter of Rights and Freedoms, s. 7.
The appellant and C went out drinking at a bar one night where they met and befriended the deceased, who was impaired. The three men left the bar together, all appearing to witnesses to be drunk, and the deceased was robbed and beaten with a 2 x 4 piece of lumber. The appellant and C were charged with second degree murder. The appellant made no statement to the police. He testified at trial, 13 months after the murder, that he had never struck the deceased and denied that he had aided or abetted in the assault. C's counsel cross‑examined the appellant on the appellant's failure to make any statements to the police. C did not testify at trial. His version of the events was set out in a videotaped statement to the police on his arrest. Effectively, each accused cast the blame primarily on the other, and each relied on the defence of intoxication as negativing the intent for murder. The appellant and C were both convicted of second degree murder. The Court of Appeal, in a majority decision, upheld the convictions. This appeal is to determine (1) whether the cross‑examination of the appellant on his failure to give a statement to the police and the trial judge's failure to instruct the jury to disregard that cross‑examination violated his pre‑trial right to silence protected by s. 7 of the Canadian Charter of Rights and Freedoms; and (2) whether the trial judge erred in instructing the jury as to the use it could make of the evidence that the appellant had not given a statement to the police, in light of his constitutionally guaranteed right to remain silent.
Held: The appeal should be allowed and a new trial ordered.
Per Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: It is a corollary of the right to choose to remain silent during the pre‑trial investigation that, if exercised, this fact is not to be used against the accused at a subsequent trial on a charge arising out of the investigation and no inference is to be drawn against an accused because he or she exercised the right. The right to pre‑trial silence, however, like other Charter rights, is not absolute. Application of Charter values must take into account other interests and in particular other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case in that the conflicting rights are protected under the same section of the Charter.
Co‑accused persons clearly have the right to cross‑examine each other in making full answer and defence. Restrictions that apply to the Crown may not apply to restrict this right of the co‑accused. The right to make full answer and defence is not, however, absolute. When the right is asserted by accused persons in a joint trial, regard must be had for the effect of the public interest in joint trials with respect to charges arising out of a common enterprise. Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co‑accused is waging a "cut‑throat" defence is not in itself sufficient.
To resolve the competing interests at issue, a balance between the rights of the two co‑accused must be struck taking into account the interest of the state in joint trials. An accused who testifies against a co‑accused cannot rely on the right to silence to deprive the co‑accused of the right to challenge that testimony by a full attack on the former's credibility including reference to his pre‑trial silence. The co‑accused may thus dispel the evidence which implicates him emanating from his co‑accused. He cannot, however, go further and ask the trier of fact to consider the evidence of his co‑accused's silence as positive evidence of guilt on which the Crown can rely to convict. The limited use to which the evidence can be put must of course be explained to the jury with some care. The jury should be told: (1) that the co‑accused who has testified against the accused had the right to pre‑trial silence and not to have the exercise of that right used as evidence as to innocence or guilt; (2) that the accused implicated by the evidence of the co‑accused has the right to make full answer and defence including the right to attack the credibility of the co‑accused; (3) that the accused implicated by the evidence of the co‑accused had the right, therefore, to attack the credibility of the co‑accused by reference to the latter's failure to disclose the evidence to the investigating authorities; (4) that this evidence is not to be used as positive evidence on the issue of innocence or guilt to draw an inference of consciousness of guilt or otherwise; (5) that the evidence could be used as one factor in determining whether the evidence of the co‑accused is to be believed. The failure to make a statement prior to trial may reflect on the credibility of the accused or it may be due to other factors such as the effect of a caution or the advice of counsel. If the jury concluded that such failure was due to a factor that did not reflect on the credibility of the accused, then it must not be given any weight.
In this case there was nothing in the manner or form of the cross‑examination that amounted to an improper use of this evidence. The charge and re‑charge, however, contain serious misdirections. The jury were clearly invited to consider the evidence of pre‑trial silence on the issue of innocence or guilt and as consciousness of guilt. The references to the right to remain silent did not mitigate this misdirection and the re‑charge was not substantially different. The Crown has not satisfied its obligation under s. 686(1)(b)(iii) of the Code to show that if a proper direction had been given the verdict would necessarily have been the same.
Per McLachlin J.: Evidence that a co‑accused failed to give his version to the authorities should be excluded. The right to silence must mean that a suspect has the right to refuse to talk to the police and not be penalized for it. Further, since the accused has been informed by the police of the right not to speak, his exercise of it cannot logically found an inference as to his credibility when he later testifies. The same considerations govern the contention of the other accused in a joint trial, that he should be allowed to cross‑examine on the failure of his co‑accused to disclose his version to the police. Since no valid inference can be drawn from exercise of the right to silence, the evidence sought to be adduced should be excluded for lack of relevancy. Because the evidence lacks probative value, it cannot be suggested that its exclusion denies the co‑accused the right to full answer and defence. Alternatively, even if slight probative value could be found, the evidence should be excluded on the ground that it has insufficient probative value to overcome the prejudicial effect on the trial process that arises from the danger that the jury will infer not just lack of credibility but guilt. Since the law of evidence precludes the admission of prior consistent statements to bolster the credibility of an accused, admission of evidence of a co‑accused's silence leads to a further difficulty. If pre‑trial silence can lead to a negative inference as to credibility, the accused is placed in the anomalous situation of being obliged to make a prior consistent statement in order to avoid cross‑examination on his silence, but being unable to tender that evidence in support of his own credibility.
Cases Cited
By Sopinka J.
Referred to: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Chambers, [1990] 2 S.C.R. 1293; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Naglik (1991), 65 C.C.C. (3d) 272, rev'd on another point, [1993] 3 S.C.R. 122; R. v. Cuff (1989), 49 C.C.C. (3d) 65; R. v. Wickham (1971), 55 Cr. App. R. 199; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. McLaughlin (1974), 2 O.R. (2d) 514; R. v. Ma, Ho and Lai (1978), 44 C.C.C. (2d) 537; R. v. Jackson (1991), 68 C.C.C. (3d) 385, aff'd on other grounds, [1993] 4 S.C.R. 573; R. v. Kendall and McKay (1987), 35 C.C.C. (3d) 105; Lowery v. The Queen, [1974] A.C. 85; R. v. Pelletier (1986), 29 C.C.C. (3d) 533; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Gilbert (1977), 66 Cr. App. R. 237; R. v. Seaboyer, [1991] 2 S.C.R. 577.
By McLachlin J.
Referred to: Bruce v. The Queen (1987), 6l Aust. L.J. Rep. 603.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 4(6).
Canadian Charter of Rights and Freedoms, ss. 7, 11(c).
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).
Authors Cited
Elliot, D. W. "Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co‑Accused", [1991] Crim. L. Rev. 5.
McNicol, Suzanne B. Law of Privilege. Sydney: Law Book Co., 1992.
Paciocco, David M. Charter Principles and Proof in Criminal Cases. Toronto: Carswell, 1987.
APPEAL from a judgment of the Ontario Court of Appeal (1993), 13 O.R. (3d) 130, 62 O.A.C. 91, 80 C.C.C. (3d) 421, 20 C.R. (4th) 331, 14 C.R.R. (2d) 93, upholding the appellant's conviction by White J. of second degree murder. Appeal allowed and new trial ordered.
Christopher D. Hicks, for the appellant.
C. Jane Arnup, for the respondent.
//Sopinka J.//
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
1 Sopinka J. -- This appeal concerns the right of one co-accused in a joint trial to introduce evidence of the pre-trial silence of another co-accused and, if such evidence is permitted, the use that may be made of such evidence.
I. Facts
2 The appellant, Crawford, and his co-accused, Creighton, were charged with second degree murder of Behnke. One night in early November 1988, Crawford and Creighton, who are distant cousins, went out drinking at a Belleville bar where they met and befriended the deceased, who was impaired. The three men left the bar together, all appearing to witnesses to be drunk, and the deceased was robbed and beaten with a 2 x 4 piece of lumber. The autopsy of the victim revealed that the immediate cause of death was a "massive area of bruising" within the victim's brain, consistent with the application of "massive blunt force" to the top of his head, but the pathologist did not rule out interplay between head injuries and serious injuries to other parts of his body. The cause of death thus was stated to be multiple trauma to the head and body.
3 The Crown's theory was that Crawford and Creighton pretended to befriend the impaired deceased, invited him to a party with the intention of robbing him, and after robbing him, either Crawford or Creighton or both beat the deceased viciously with a 2 x 4 causing his death.
4 Crawford made no statement to the police. He testified at trial, 13 months after the murder, that he had never struck the deceased and denied that he had aided or abetted in the assault. Crawford testified that, on leaving the bar with Creighton and the deceased, the deceased had grabbed the waitress's leg and apologized and Creighton had told the waitress that he would "take care of it". On the way to the party, Creighton hit the deceased without warning and the two exchanged about four punches before Crawford could intervene. He tried to grab the deceased but lost his balance and he and the deceased fell to the ground with the deceased on top. They began to scuffle when Creighton hit the deceased on the back with a 2 x 4. Crawford became scared, shoved the deceased off him, and ran away. When Creighton caught up to him, Creighton said "I think I killed him".
5 Creighton's counsel cross-examined Crawford on Crawford's failure to make any statements to the police:
Q.Mr. Crawford, if my memory is correct the incident that brings us here today happened one year and 20 days ago; is that right?
A.I think so, yes. I'm not too sure, I didn't check.
Q.Well, it's the 22nd day of November today, 1989?
A.Yes.
Q.Do you agree with that?
A.Yes.
Q.So this incident happened one year and 20 days ago?
A.Yes.
Q.You have had one year and 20 days to think about what you were going to tell us about this?
A.Just the truth.
Q.You've had one year and 20 days to think about it.
A.Just the truth.
Q.Have you ever told the police anything about it?
A.No.
Q.Have you ever told anybody in authority anything about it?
A.Just my lawyer.
Q.You have been well represented by counsel?
A.Yes.
Q.You were aware through your counsel what all the evidence was in this case?
A.Well, yes.
6 Creighton did not testify at trial. His version of the events was set out in a videotaped statement to the police on his arrest. Creighton said that he, Crawford, and the victim had left the pub on the way to a party. Crawford and the victim were arguing as they walked. When a fight broke out between Crawford and the deceased, Creighton intervened and tried to break it up. When that failed, since the deceased was on top of Crawford, he hit the deceased across the back about four times with a 2 x 4 piece of lumber (about 3 feet long). Crawford continued to beat the victim with his fists, despite Creighton grabbing Crawford and telling him to stop since the victim was already hurt. Unable to break up the fight, he climbed over a fence and left the scene. At the point that he left, Creighton told the police that the deceased was still alive. Crawford soon came running behind him saying that they had to "get . . . out of here I think I killed him".
7 Effectively, each accused cast the blame primarily, if not entirely, upon the other, and each relied upon the defence of intoxication as negativing the intent for murder. At trial, Creighton's counsel made much of the fact that Crawford had declined to give a statement to the police on his arrest, contrasting unfavourably with Creighton's full statement to the police at the earliest opportunity. Conversely, Crawford's counsel, when addressing the jury, stated that "an innocent man sitting in Creighton's seat would have gotten into that witness box and sworn that he was not guilty". Crawford's counsel also dealt with Creighton's counsel's cross-examination of Crawford in his closing address to the jury.
8 On November 28, 1989, the appellant and co-accused were both convicted of second degree murder by White J. of the Ontario Supreme Court sitting with a jury. They appealed their convictions to the Ontario Court of Appeal. Crawford claimed that:
(1)the trial judge erred in allowing counsel for the co-accused to cross-examine him on his failure to give a statement to the police, thus infringing his right to remain silent; and
(2)the trial judge had erred in not instructing the jury to disregard that cross-examination on his pre-trial silence.
On April 6, 1993, the Court of Appeal dismissed the appeals: (1993), 13 O.R. (3d) 130, 62 O.A.C. 91, 80 C.C.C. (3d) 421, 20 C.R. (4th) 331, 14 C.R.R. (2d) 93. Weiler J.A. dissented, holding that the trial judge erred in instructing the jury as to the use that it could make of the evidence that Crawford had not given a statement to police, in light of his constitutionally guaranteed right to remain silent, and would have allowed the appeal and ordered a new trial.
9 Crawford appealed as of right to this Court on whether the trial judge erred in instructing the jury as to the use of the evidence that Crawford had not given a statement to the police. Leave to appeal was granted on whether the Court of Appeal erred in holding that Crawford's rights were not infringed either by:
(1)the cross-examination of Crawford by Creighton's counsel on his failure to give a statement to the police before trial; or
(2)the failure of the trial judge to instruct the jury to disregard this cross-examination.
Creighton has not appealed.
II. Relevant Legislation
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
III. Judgments Below
A. Charge to the Jury
10 In his charge to the jury, the trial judge reminded the jury of the cross-examination of Crawford by Creighton's counsel:
So his [Crawford's] basic defence is that he left before -- that while blows were struck by Creighton he had no foreknowledge of that, he did not make any plan with Creighton to assault or rob Mr. Behnke, his presence in that yard was entirely innocent, he was going to a party, suggested by Creighton. And his explanation of why he fled the scene, I've already indicated to you what that was, but his explanation as to why he didn't go to the police and give them what he knew about this, and this was brought out when Mr. Kemp [counsel for Creighton] was cross-examining him. [Emphasis added.]
The trial judge's charge on the circumstantial evidence against Crawford included reference to his failure to give an explanation to the police:
Does the circumstantial evidence against Crawford, together with the admissions he made in his evidence, satisfy you beyond a reasonable doubt that he was an accomplice of Creighton in a joint enterprise to rob Behnke? Consider all the circumstances.
The chief circumstance might be the blood on his pants and the blood on his jacket; his admission that he was in a fight, and that was to Miss Delorme; his flight from the scene; his failure to come forward if he is innocent; his hiding his pants, and he admitted that, in the garbage. [Emphasis added.]
The trial judge's charge to the jury on the use they could make of Crawford's silence upon arrest was as follows:
But Mr. Kemp, as you remember, started this cross-examination:
"Today is the 22nd of November. This incident took place one year and 20 days ago. You have had a year and 20 days to think about it. Did you ever tell the police about it?"
"No."
And, of course, the first time Crawford gave his version of what happened that night was in the witness box as far as the public notice is concerned.
And, yes, there is a Charter of Rights and, yes, you have the right to remain silent. Those are all constitution rights. But also it's an axiom of reasonable conduct that if you're entirely innocent of something serious that you witnessed you are not afraid to talk about it, Charter or no Charter, that's just a simple common sense proposition, and that was the point that Mr. Kemp made in his cross-examination.
Certainly you don't have to make a statement to the police but, on the other hand, you can take into account that if the story -- Mr. Crawford's evidence is a version of the facts that is reasonable, you can certainly accept his evidence, but you have a right to ask yourself, if I am to believe this evidence, why has Mr. Crawford waited until now to tell anybody about it, anybody in authority? And, while you certainly respect his Charter rights to remain silent, as jurors of fact you are entitled to take into account that fact, that he didn't tell anybody until this trial.
11 When Crawford's counsel objected to this charge, in his re-charge to the jury, the trial judge reinstructed the jury as follows (in part):
And, of course, I told you time and time again, in a criminal case there is no obligation upon the accused to make any explanation at any time, there is never an obligation to make an explanation. The onus is on the Crown to prove beyond a reasonable doubt the ingredients of the offence, the mental state and the fact. However, that is what I meant in discussing the statement of Creighton on that subject.
When I commented upon the testimony of Crawford I indicated, as by referring to Mr. Kemp's cross-examination of him, that this trial was the first occasion on which Crawford gave his side of what had happened, and I may have mentioned that it is a proposition of common sense to the effect that if he is innocent, why hasn't he said anything about it up until now.
It would be wrong for you to infer that at any time there was any obligation whatsoever on Mr. Crawford to tell the police or anybody else what had happened. Insofar as you may have construed my remarks as indicating that he had an obligation, please disregard those remarks. There is no obligation on any person accused of a crime to make any statement. That is enshrined in the Charter. So bear that in mind, that he was within his rights not to have made any statement, and he was within his rights to remain silent until the trial to give his explanation.
Now, you should not, therefore, draw any adverse inference from Crawford's failure to have given a statement to the police or to have given his evidence hitherto. He had a perfect right to remain silent.
Notwithstanding that right to remain silent, it is not unreasonable for you, as jurors of fact in analyzing the credibility of Crawford, to put to yourself the question such as would be reasonable, and the question might very well be, If Crawford expects me, a juror, to believe that he left after there were a certain number of blows, in which he was unaware that any severe damage had been done to the deceased, and if a short while later, on the street, the other person told him words to the effect he had -- I forget what the words were but, according to Crawford he told -- Creighton told him that he had killed a man, or words to that effect, I say it is a proposition of sense, and that in that situation one does -- one can expect a person whose conduct -- a person who is innocent to act in accordance with the way an innocent person would act. You're the jurors and I'll leave that to you.
B. Ontario Court of Appeal (1993), 13 O.R. (3d) 130
Majority
12 After reviewing the cross-examination of Crawford by Creighton's counsel and the jury charge, Finlayson J.A. (Tarnopolsky J.A. concurring) noted that there was not much difference between what the trial judge said in his initial charge to the jury and what he said in his re-charge. Nonetheless, there was nothing substantially wrong with what the trial judge said in either of his instructions (at p. 137):
What has happened in this case resulted from the inevitable tension between the constitutionally protected rights of two accused who adopted antagonistic defences. There is clearly a conflict between the constitutionally protected right of Crawford to remain silent and the constitutionally protected right of Creighton to full answer and defence. Both protections are contained in s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). In addition . . . s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5, prohibits Crown counsel and the trial judge from commenting on the failure of an accused to testify. It does not so limit counsel for a co-accused.
Where an attack on a co-accused is relevant to his defence, an accused cannot be limited. The remedy is to ask for a trial severance. If it can be shown that the prejudicial effect is great then the trial judge has discretion to sever the trial of the two accused. In this case, there was no request for severance. Furthermore, severance likely would not have been granted merely because of cut-throat defences, since the public has an interest in bringing criminals to justice and severance might have resulted in two unwarranted acquittals.
13 Finlayson J.A. then considered the principles relating to the right to remain silent, and restrictions on counsel in commenting on the failure of a co-accused to testify. Neither the Crown nor the trial judge may comment on an accused's exercise of his right to remain silent, a principle codified in s. 4(6) of the Canada Evidence Act, R.S.C., 1985, c. C-5. The situation is different, however, when there are two or more accused, and one sets up, as part of his attack on the credibility of his co-accused, the failure of his co-accused to testify or to give a statement to the police at the earliest opportunity. In R. v. Naglik (1991), 65 C.C.C. (3d) 272, the Ontario Court of Appeal held that neither s. 11(c) of the Charter nor s. 4(6) of the Canada Evidence Act prevented co-accused counsel from commenting on an accused's failure to testify. In that case, Morden A.C.J.O. noted that, unlike the bulk of American case law, in Canada, it is open to a jury to draw an adverse inference from the failure of an accused to testify. Thus (Finlayson J.A. , at p. 139):
In exercising his constitutional right to full answer and defence, he is entitled to put his best foot forward, and the court is not entitled to inhibit that defence simply because it involves a tactic prohibited to the Crown.
After a review of English and American case law, Finlayson J.A. then concluded (at pp. 143-44) that:
In my opinion, then, it was open to counsel for Crawford to comment upon the failure of Creighton to testify on his own behalf....
The case under appeal is probably the classic confrontation between the conflicting rights of accused persons to a fair trial. The fact of the conflict causes me no unease, and I am not persuaded that either appellant received anything other than a fair trial or that the result of the trial was unsatisfactory.
Dissent
14 Weiler J.A. agreed that Creighton's counsel was entitled to comment on the fact that Crawford did not make any response to the charges against him until trial. This is part of the co-accused's right to make full answer and defence.
15 Nonetheless, when the trial judge's charge to the jury concerning Crawford is considered as a whole, it infringes his right to remain silent up until trial. In the charge to the jury, the trial judge should have balanced:
(a)the co-accused's right to make full answer and defence, in attacking the credibility of Crawford's evidence, with
(b)instructions as to Crawford's right to remain silent.
A balanced charge would have been as follows (at p. 145):
(a)Crawford had a constitutionally guaranteed right to remain silent and had an absolute right to exercise that right.
(b)The jury could not draw an inference of consciousness of guilt as a result of Crawford's choice to exercise that right.
(c)Creighton had the right to make full answer and defence and was entitled to attack the credibility of Crawford's evidence.
(d)When assessing the credibility of Crawford's evidence the jury could consider, as one factor, that Crawford did not make a statement prior to trial, but they could not consider the exercise of his right to remain silent for any other purpose. Specifically, they could not use the fact that Crawford exercised his right to remain silent as positive evidence of his guilt. [Emphasis in original.]
Instead, the trial judge clearly gave instruction on (a), gave contradictory and confusing instructions on (b), and gave no instructions on (c) and (d). One excerpt of the charge implicitly refers to Crawford's exercise of his right to remain silent as one of the circumstances from which the jury could infer guilt combined with other circumstantial evidence.
16 While in his re-charge, the trial judge attempted to correct the impression that Crawford had an obligation to make a statement, the trial judge nevertheless again referred to it as a failure on Crawford's part. This instruction was confusing and contradictory, but left the clear implication that an innocent person would come forward quickly and proclaim his innocence (at p. 148):
At no time did the trial judge correct his earlier instructions and tell the jury that they were not entitled to consider the fact that the accused had exercised his constitutional right to remain silent as a positive piece of circumstantial evidence in deciding whether the Crown had proven Crawford's guilt beyond a reasonable doubt, nor did he tell them of the limited use to which this evidence could be put, that is, only as a factor in assessing Crawford's credibility ....
It is trite law that the failure of counsel to object to the recharge, while a factor to consider, does not, alone, excuse error in law on the part of the trial judge. The charge, when read as a whole, was so imbalanced that I am unable to conclude with a reasonable degree of certainty that the jury's verdict would necessarily have been the same in relation to Crawford, and therefore that there has been no substantial wrong or miscarriage of justice.
Weiler J.A. refused to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46.
IV. Issues
1.Cross-Examination by Co-Accused: Did the Ontario Court of Appeal err in holding that cross-examination of the appellant Crawford on his failure to give a statement to the police by counsel for the co-accused Creighton and the failure of the trial judge to instruct the jury to disregard that cross-examination on the appellant's pre-trial silence did not violate his pre-trial right to silence protected by s. 7 of the Charter?
2.Adequacy of Jury Charge: Did the trial judge err in instructing the jury as to the use it could make of the evidence that the appellant Crawford had not given a statement to the police, in light of his constitutionally guaranteed right to remain silent?
V. Analysis
17 As the appellant points out, no Canadian court or court in a common law jurisdiction has addressed squarely the issue of the right of one co-accused to comment on or cross-examine another accused on the latter's pre-trial silence. The analysis must therefore proceed on the basis of principle and policy. Involved are the competing assertions of two accused that their respective rights, both of which are protected under s. 7 of the Charter, be respected. One accused asserts his right to silence and that its exercise not be used against him to his prejudice, while the other contends that he has the right to make full use of the pre-trial silence of his co-accused in order to make full answer and defence. As well, the prosecution asserts that it is in the interest of effective law enforcement to have a joint trial in respect of charges arising out of a common enterprise and, in particular, in circumstances in which the co-accused are engaging in mutual recriminations.
18 Three plausible solutions for resolution of the competing interests have been put forward in this case:
1. The accused's pre-trial silence trumps the co-accused's right to make use of it in furtherance of his defence. This is the appellant's position.
2. The co-accused's right to make full answer and defence trumps the accused's right to pre-trial silence. This is essentially the approach of the majority of the Court of Appeal.
3. A balance between the rights of the two co-accused must be struck taking into account the interest of the state in joint trials. This is the position of the Crown and of Weiler J.A. in dissent in the Court of Appeal.
19 A fourth solution would be to sever the trial whenever the conflict occurs, but no one in this appeal advocates such a solution and it would run counter to a uniform stream of authority in this country in favour of joint trials. No application for severance was made at trial and the issue was not raised or commented on in the Court of Appeal.
20 I turn to consider each of the competing rights and interests in order to determine which of the solutions is appropriate. I conclude that the third option is the solution that best accords with the interests involved and respects the principles of fundamental justice as well as society's interest in effective law enforcement.
The Right to Pre-trial Silence
21 The right to silence embraces a number of distinct rights which are included in s. 7 of the Charter as principles of fundamental justice. Two aspects of the right to silence are pertinent to the discussion of the issues in this appeal, that is, the right to pre-trial silence and silence at trial. The latter is specifically protected in s. 11(c) of the Charter. See Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. S. (R.J.), [1995] 1 S.C.R. 451; and others.
22 It is a corollary of the right to choose to remain silent during the pre-trial investigation that, if exercised, this fact is not to be used against the accused at a subsequent trial on a charge arising out of the investigation and no inference is to be drawn against an accused because he or she exercised the right. See R. v. Chambers, [1990] 2 S.C.R. 1293. The same general rationale would apply to trial silence but the matter has been complicated by the specific statutory provision in s. 4(6) of the Canada Evidence Act which forbids the trial judge and Crown counsel from commenting on the failure of the accused to testify. This encompasses both comment prejudicial to the accused, as well as a direction that the jury must not draw an unfavourable conclusion from the accused's failure to testify. As a result, as a practical matter in a jury trial, as Martland J. writing for the majority in Vézeau v. The Queen, [1977] 2 S.C.R. 277, at p. 288, stated, "it is open to a jury to draw an inference from the failure of the accused to testify, and, particularly, in a case in which it is sought to establish an alibi".
23 The above principles were developed in relation to the use that may be made of the accused's silence by the Crown and comment on such silence by the trial judge, and not its use by a co-accused. The main issue in this appeal is whether these principles must be applied in their full vigour when it is a co-accused who seeks to make use of the silence of his co-accused.
24 With respect to silence at trial it has been held by several Courts of Appeal in Canada that a co-accused can comment on the failure of his co-accused to testify. See R. v. Naglik, supra, reversed on another point, [1993] 3 S.C.R. 122, and R. v. Cuff (1989), 49 C.C.C. (3d) 65 (Nfld. C.A.). See also R. v. Wickham (1971), 55 Cr. App. R. 199 (C.A.). In Naglik, this Court found it unnecessary to deal with the point as a new trial was directed and, in the circumstances, the issue would not arise at the new trial. As pointed out by the Chief Justice, in order to decide the point it may be necessary to consider whether the right to comment and the restriction imposed by s. 4(6) can stand together in so far as the subsection precludes a limiting instruction. L'Heureux-Dubé J., dissenting on other grounds, opined that such a comment is permitted.
25 It has been submitted that to the extent that the above line of authority establishes that the right to silence at trial must give way to the rights of a co-accused and therefore it is not an absolute right, a clear distinction exists between the right of silence at trial and pre-trial silence. Prior to or on arrest, the accused is in a much more vulnerable position against the coercive power of the state. The environment in the police station is different from that of the courtroom where procedural rules protect the accused. In the police station, the accused may not be represented and he may be overwhelmed by the whole experience. The police possess considerably greater power than the accused and there are no disclosure obligations. The police can disclose some or misleading information or no information at all. Evidential use of silence forces the suspect to cooperate with his interrogators without a reciprocal exchange of information and without placing proper limits on the power of the police to demand cooperation. In contrast, in the courtroom, the accused is represented, he knows the case that he has to meet (due to disclosure) and there are rules regarding admissibility of evidence. See McNicol in Law of Privilege (1992), at p. 286.
26 I accept that the distinctions referred to are apt, but nonetheless I am not prepared to accept that, therefore, the right to pre-trial silence is absolute. In Hebert, supra, at p. 179, McLachlin J. stated:
[Section 7] guarantees the individual's life, liberty and security of person. But it recognizes that these rights are not absolute. In certain circumstances, the state may properly deprive a person of these interests. But it must do so in conformity with the principles of fundamental justice.
This principle applies, a fortiori, when there is a conflict between two rights, both protected by the Charter. In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877, the Chief Justice in his majority reasons pointed out that "[a] hierarchial approach to rights, which places some over others, must be avoided". In this regard it is significant that, even in the absence of a competing Charter right, the right to pre-trial silence is not absolute. Accordingly, failure to make a timely disclosure of an alibi defence can be used by the Crown to attack the credibility of this defence. See Chambers, supra, per Cory J., at p. 1319.
The Right to Full Answer and Defence
27 There is no doubt about the right of co-accused persons to cross-examine each other in making full answer and defence. See R. v. McLaughlin (1974), 2 O.R. (2d) 514 (C.A.), and R. v. Ma, Ho and Lai (1978), 44 C.C.C. (2d) 537 (B.C.C.A.). Moreover, restrictions that apply to the Crown may not apply to restrict this right of the co-accused. As pointedly observed by D. W. Elliott, "Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused", [1991] Crim. L. Rev. 5, at p. 17, "[t]he notion of the Crown having one hand tied behind its back is familiar and accepted, but not the notion of a person standing trial being in that position". See also R. v. Jackson (1991), 68 C.C.C. (3d) 385 (affirmed on other grounds, [1993] 4 S.C.R. 573), at p. 434, per Doherty J.A. Accordingly, a co-accused may adduce evidence of or cross-examine on the disposition or propensity of a co-accused to commit the offence even though the co-accused has not put his character in issue, and may cross-examine a co-accused on a statement the voluntariness of which has not been established. See R. v. Kendall and McKay (1987), 35 C.C.C. (3d) 105 (Ont. C.A.); Lowery v. The Queen, [1974] A.C. 85 (P.C.); R. v. Pelletier (1986), 29 C.C.C. (3d) 533; R. v. Jackson, supra. Exclusionary rules based on a policy of fairness to the accused would preclude the Crown resorting to this kind of evidence.
28 The right to make full answer and defence is protected under s. 7 of the Charter. As stated in R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336:
This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. . . . The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.
This right extends to prevent incursions on its exercise not only by the Crown but by the co-accused. As observed by Goodman J.A. in Kendall, supra, at p. 127:
Having been obliged to participate in a joint trial, Kendall was nevertheless entitled to make full answer and defence in accordance with the principles of fundamental justice: see Canadian Charter of Rights and Freedoms, s. 7, and the Criminal Code of Canada, s. 577(3). The law is clear that if Kendall had been tried alone he would have been entitled to call Dakin's evidence to show that it was probable that McKay had committed the crime. His right to call that evidence cannot be denied simply because he was obliged to participate in a joint trial.
The right to full answer and defence, as is the case with other Charter rights, is not absolute. It must be applied and be subject to other rules that govern the conduct of a criminal trial. As I stated in Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1515:
The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter, an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence.
When the right is asserted by accused persons in a joint trial, regard must be had for the effect of the public interest in joint trials with respect to charges arising out of a common enterprise. Can this interest in joint trials prevail against the assertion of one accused to make full answer and defence while at the same time protecting another accused against the blows to his or her right to pre-trial silence that the exercise of the right to make full answer and defence entails? In order to resolve this question it is necessary to examine the principles relating to joint trials and severance.
Joint Trials and Severance
29 In Kendall, supra, Goodman J.A., after concluding that the exclusion of evidence as to disposition of the co-accused violated the appellant's right to make full answer and defence, went on to deal with the question of severance. At page 127, after the passage quoted above, he stated:
It is no doubt true that the evidence of Dakin would have been highly prejudicial to McKay. . . . It may be that if the evidence had been admitted that McKay could have complained that it was highly prejudicial to him and could not have been introduced against him by the prosecution if he had been tried alone. He may then have applied for a separate trial on the ground that the admission of such evidence on the joint trial might cause a miscarriage of justice in so far as he was concerned.
30 There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:
There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved.
31 Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient. In Pelletier, supra, a co-accused was permitted to cross-examine another accused on a statement to the police that had not been proved to be voluntary. On appeal of his conviction he contended that if he had been tried separately the cross-examination would not have been permitted. On this basis he claimed that the trials should have been severed. In dismissing this ground, Hinkson J.A., on behalf of the court, stated, at p. 539:
On this point it is necessary to keep in mind that the trial judge has a discretion as to whether or not he will grant a severance. The general rule of severance is that persons engaged in a common enterprise should be jointly tried unless it can be demonstrated that a joint trial would work an injustice to a particular accused: R. v. Black and six others, [1970] 4 C.C.C. 251 at pp. 267-8, 10 C.R.N.S. 17 at pp. 35-6, 72 W.W.R. 407. In this case, the trial judge was not persuaded that it was appropriate to grant a severance. I do not conclude that he erred in the exercise of his discretion.
32 As I pointed out above, neither party to this appeal contended that the solution to the problem is to order separate trials whenever the full exercise of the right to make full answer and defence by one accused appears to collide with the protections ordinarily accorded to an accused when facing the Crown alone. This position is consistent with both principle and policy as outlined above. The general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, however, that the trial judge has been stripped of his discretion to sever. That discretion remains and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused.
Resolving Competing Charter Rights
33 The proper approach to the problem created by a conflict in the protected rights of individuals was outlined by the Chief Justice in Dagenais, supra. After stressing that Charter rights are of equal value, he continued as follows, at p. 877:
When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.
34 I have gone to some length to stress that Charter rights are not absolute in the sense that they cannot be applied to their full extent regardless of the context. Application of Charter values must take into account other interests and in particular other Charter values which may conflict with their unrestricted and literal enforcement. This approach to Charter values is especially apt in this case in that the conflicting rights are protected under the same section of the Charter.
35 Applying the foregoing to the question posed at the commencement of this analysis, the appropriate choice of the three solutions is readily apparent. The first option would allow the right to silence to trump the right to full answer and defence. This would apply one right fully in complete disregard of another equal right. Similarly, the second option would allow the right to full answer and defence to trump the right to silence. This again is counter to the approach which was approved in Dagenais, supra, in that it applies one right in absolute terms to the detriment of another equal right. The third solution which strikes a balance between the two is the correct approach. It remains to determine how the two rights can be reconciled in order to give the fullest respect possible to the Charter values which underpin these rights.
36 An accused who testifies against a co-accused must accept that his credibility can be fully attacked by the latter. In R. v. Kuldip, [1990] 3 S.C.R. 618, at pp. 635-36, the Chief Justice stated:
An accused has the right to remain silent during his or her trial. However, if an accused chooses to take the stand, that accused is implicitly vouching for his or her credibility. Such an accused, like any other witness, has therefore opened the door to having the trustworthiness of his/her evidence challenged.
The accused who has incriminated a co-accused by his testimony cannot therefore rely on the right to silence to deprive the accused who is implicated by his testimony of the right to challenge that testimony by a full attack on the credibility of the former including reference to his pre-trial silence. This enables the co-accused to dispel the evidence which implicates him emanating from his co-accused. He cannot, however, go further and ask the trier of fact to consider the evidence of his co-accused's silence as positive evidence of guilt on which the Crown can rely to convict. This is not essential to enable him to defend himself against the imputations of his co-accused and would constitute an unwarranted intrusion on the right to silence of his co-accused.
37 The limited use to which the evidence can be put must of course be explained to the jury with some care. The distinction between the use of evidence limited to credibility and evidence that can be used to infer guilt is well understood by lawyers but may not be easily understood by a jury. It has been criticized as being artificial. See R. v. Gilbert (1977), 66 Cr. App. R. 237 (C.A.). While I recognize that the distinction is a subtle one, it is nonetheless a distinction that is firmly rooted in our law and is one that can be adequately explained to a jury. The distinction was recently re-affirmed by this Court in Kuldip, supra. At p. 635, the Chief Justice stated:
This seems an appropriate time at which to mention that I share Martin J.A.'s concern that it is sometimes difficult to draw a clear line between cross-examination on the accused's prior testimony for the purpose of incriminating him and such cross-examination for the purpose of impeaching his credibility. A trial judge will have to be very clear in his or her instructions to the jury when setting out the uses to which previous testimony can be put and the uses to which such testimony must not be put. While such a distinction may be somewhat troublesome to the jury, it is my view that with the benefit of clear instructions from the trial judge the jury will not be unduly burdened with this distinction. These instructions should, in many ways, be reminiscent of those which are routinely given with respect to the use to which an accused's criminal record may be put. A trial necessarily involves evidentiary questions which are sometimes complex in nature. While simplicity in these manners is generally preferable to complexity, the policy reasons underlying the need for a jury to have before it all the relevant information related to the charge (discussed by this Court in R. v. Corbett, [1988] 1 S.C.R. 670) clearly outweigh the benefits of simplicity in these circumstances.
It is also a distinction that is made with respect to the alibi defence in respect of which the accused's failure to make timely disclosure may be used to attack credibility. See Chambers, supra.
38 A proper balance with respect to the competing rights in issue can be achieved if the trial judge when sitting alone carefully applies the distinction to which I refer above. The evidence of pre-trial silence is not to be used as positive evidence to infer the guilt of the accused either as tending to show consciousness of guilt or otherwise. In a trial before a jury the trial judge must explain the respective rights involved, how they are to approach the use of the evidence of silence and its limited purpose. In her dissenting reasons, Weiler J.A. has suggested four points that the charge should contain. The Crown in its argument and factum suggests a fifth. With the benefit of these suggestions and the submissions of counsel, I propose the following as a guideline that trial judges should follow in these circumstances. The jury should be told:
1. that the co-accused who has testified against the accused had the right to pre-trial silence and not to have the exercise of that right used as evidence as to innocence or guilt;
2. that the accused implicated by the evidence of the co-accused has the right to make full answer and defence including the right to attack the credibility of the co-accused;
3. that the accused implicated by the evidence of the co-accused had the right, therefore, to attack the credibility of the co-accused by reference to the latter's failure to disclose the evidence to the investigating authorities;
4. that this evidence is not to be used as positive evidence on the issue of innocence or guilt to draw an inference of consciousness of guilt or otherwise;
5. that the evidence could be used as one factor in determining whether the evidence of the co-accused is to be believed. The failure to make a statement prior to trial may reflect on the credibility of the accused or it may be due to other factors such as the effect of a caution or the advice of counsel. If the jury concluded that such failure was due to a factor that did not reflect on the credibility of the accused, then it must not be given any weight.
Application to this Appeal
39 There is no question in this appeal that Creighton's right of full answer and defence was respected and he was given full right of cross-examination on the appellant's pre-trial silence. The issue is whether the use of the appellant's pre-trial silence violated his Charter rights. There was nothing in the manner or form of the cross-examination that amounted to an improper use of this evidence. Ordinarily, the extent of the use to be made of the answers obtained in cross-examination will not be apparent from the questions and answers themselves and any limitations on such use must be imposed in the instructions to the jury. For the reasons which I have expressed above, I decline to accede to the appellant's submission that counsel for the accused, Creighton, should not have been allowed to cross-examine on the appellant's silence or that the jury should have been instructed to disregard this evidence. Accordingly, if the charge to the jury had contained proper instructions limiting the use of the evidence to credibility, then the appeal would have failed. The Crown concedes that the charge does not entirely follow the model which it proposes but submits that it is not so far removed from it that it constitutes a substantial wrong or miscarriage of justice. I agree with Weiler J.A. and for the reasons that she gives that the charge and re-charge contain serious misdirections. The jury were clearly invited to consider the evidence of pre-trial silence on the issue of innocence or guilt and as consciousness of guilt. The references to the right to remain silent did not mitigate this misdirection. The re-charge was not substantially different.
40 It would be difficult to justify the position that the distinction between the use of evidence for the purpose of credibility and as positive evidence of guilt is a meaningful one but that, on the other hand, failure to make it in this case did not have any significant effect on the result. I agree with Weiler J.A. that the Crown has not satisfied its obligation under s. 686(1)(b)(iii) of the Criminal Code to show that if a proper direction had been given the verdict would necessarily have been the same.
Disposition
41 The appeal is allowed and a new trial ordered
//McLachlin J.//
The following are the reasons delivered by
42 McLachlin J. -- I agree that the appeal must be allowed and a new trial ordered, but for different reasons than Justice Sopinka.
43 In my view, the dilemma ably described by my colleague is best dealt with by exclusion of evidence that a co-accused failed to give his version to the authorities at an early date. The co-accused has a constitutional right to silence. He therefore cannot be faulted for not giving his version to the police. If the right to silence is to be meaningful, no adverse inferences can be drawn from his failure to do so, either as to guilt or credibility. Pre-trial silence is either a right or it is not a right. If it is a right, the trier of fact should not be permitted to draw adverse inferences from its exercise. If adverse inferences are permitted, then the right to silence is effectively lost, for no accused who wishes to preserve the possibility of putting his story forth at trial can afford to exercise it. The right to silence, if it means anything, must mean that a suspect has the right to refuse to talk to the police and not be penalized for it. Further, since the accused has been informed by the police of the right not to speak, his exercise of it cannot logically found an inference as to his credibility when he later testifies. On this I agree with the unanimous decision of the High Court of Australia: "the fact of insistence on the right [to remain silent] in the face of questioning does not, of itself and standing alone, have any probative force at all against an accused" (Bruce v. The Queen (1987), 6l Aust. L.J. Rep. 603, at p. 604). See also David M. Paciocco, Charter Principles and Proof in Criminal Cases (1987), at pp. 554-56.
44 The same considerations govern the contention of the other accused in a joint trial, that he should be allowed to cross-examine on the failure of his co-accused to disclose his version to the police. Since no valid inference can be drawn from exercise of the right to silence, the evidence sought to be adduced should be excluded for lack of relevancy. Alternatively, even if slight probative value could be found, the evidence should be excluded on the ground that it has insufficient probative value to overcome the prejudicial effect on the trial process that arises from the danger that the jury will follow the path of forbidden reasoning and infer, not just lack of credibility, but guilt: R. v. Seaboyer, [1991] 2 S.C.R. 577.
45 In summary, exclusion of evidence of failure to disclose to the police is proper given the absence of probative value of such evidence. Because the evidence lacks probative value, it cannot be suggested that its exclusion denies the co-accused the right to full answer and defence. There is no "trumping" of rights; one of them is simply not attracted. Exclusion also has the practical merit of avoiding putting the accused to the task of justifying the exercise of his rights under the Canadian Charter of Rights and Freedoms, and the jury to the almost impossible task of deciding whether "failure to make a statement prior to trial . . . reflect[s] on the credibility of the accused or . . . [is] due to other factors such as the effect of a caution or the advice of counsel" (as required by the fifth part of Sopinka J's suggested charge to the jury, at p. 885).
46 Admission of evidence of a co-accused's silence leads to this further difficulty. The law of evidence precludes the admission of prior consistent statements to bolster the credibility of an accused. If pre-trial silence can lead to a negative inference as to credibility, the accused is placed in the anomalous situation of being obliged to make a prior consistent statement in order to avoid cross-examination on his silence, but being unable to tender that evidence in support of his own credibility.
47 It follows, in my view, that the evidence in question should have been excluded. I would allow the appeal and direct a new trial.
Appeal allowed and new trial ordered.
Solicitors for the appellant: Hicks, Finnestad, Toronto.
Solicitor for the respondent: C. Jane Arnup, Toronto.