R. v. Crawford  1 S.C.R. 858: Appellant being cross-examined on his pre-trial silence -- Whether appellant's right to silence infringed
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.
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