R. v. P.A.A., 2012 NLCA 40

Date: 20120606 Docket: 11/89 Citation: R. v. P.A.A. , 2012 NLCA 40

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: P.A.A. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Barry and White, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (G), Corner Brook, 200904T0445 Appeal Heard: June 6, 2012 Judgment Rendered: June 6, 2012 (Orally) Written Reasons Filed: June 29, 2012 Reasons for Oral Decision by White J.A.

Concurred in by Wells and Barry, JJ.A Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Robin Fowler

REASONS FOR ORAL DECISION White J.A.: [ 1 ] On May 13, 2011, a jury found the appellant, P.A.A. guilty of sexual interference, contrary to

section 151 (

a) of the Criminal Code and not guilty of sexual assault, contrary to

section 271 of the Criminal Code . By written decision dated November 17, 2011, the trial judge sentenced Mr. P.A.A. to an 18 month term of imprisonment, a two year probation order, a firearm prohibition, a DNA order, a SOIRA order and a victim fine surcharge of $100. Mr. P.A.A. appealed both his conviction and his sentence. [ 2 ] In its factum, and in oral argument, the Crown conceded the conviction appeal and asked that this Court order a new trial, pursuant to section 686(2) (

b) of the Criminal Code . [ 3 ] The Court was satisfied that the appeal should be allowed and ordered a new trial with written reasons to follow. What follows are those reasons. BACKGROUND [ 4 ] The facts as set out by Mr. P.A.A. in his factum were adopted by the Crown in its factum. [ 5 ] Mr. P.A.A. was charged with one count of sexual interference and one count of sexual assault, contrary to sections 151 and 271 of the Criminal Code , respectively.

Both charges were in relation to the same complainant; the sexual interference count relating to a time period prior to her 14 th birthday and the sexual assault count relating to a time period thereafter. [ 6 ] At the beginning of the trial, a voir dire was held to determine the admissibility of a videotaped statement made by Mr. P.A.A. to the police at the RCMP detachment in Stephenville, NL on June 8, 2007. [ 7 ] Mr. P.A.A. submitted that the statement was exculpatory. It did include information such as the fact that Mr.

P.A.A. knew the complainant and her age and the fact that, because she was his niece, he was friendly with her. In it, however, he denied the complainant’s allegations. Mr. P.A.A. also noted that much of the videotaped statement consists of lengthy comments by Cst. Deaves (the interviewing officer) interspersed with numerous pauses as the Constable waited for Mr. P.A.A. to respond. Cst. Deaves repeatedly stated in the interview that she knew that the complainant was telling the truth and that Mr. P.A.A. had sexually molested her. [ 8 ] Later on the videotape Mr.

P.A.A. signed a promise to appear and an undertaking concerning the charges. The Crown at trial submitted that after Mr. P.A.A. knew he was free to go he lingered in the interview room. [ 9 ] After weighing the probative value and the prejudicial effect that the statement might have, the trial judge ultimately admitted it in an unedited form, despite Mr. P.A.A.’ counsel’s objections that Cst. Deaves comments were highly prejudicial and that an adverse inference might be drawn from Mr. P.A.A.’ silence.

The trial judge held that the prejudice could be redressed by instructions to the jury. [ 10 ] In his final summation to the jury, Crown counsel stated: Now you take from that whatever you will but if you take all of those individual comments that he made throughout the statement, if you take all of the aspects of this statement, put ‘em all together, the only reasonable inference which you can draw from that statement, not what my colleague is suggesting, the only reasonable inference you can draw from that statement is that P.A.A. knew that he had done these things to (the complainant).

P.A.A., like he had done on the three previous occasions where he had given statements and admitted to what he had done, on this occasion I would suggest to you he wanted to say what had happened but he knew this was serious. He wasn’t sure. He was going through things in his head; how his family was going to react, how his wife is going to react. He didn’t know what to do right then. He wanted to. Constable Deaves did a good job at convincing him to give a statement, to tell her what happened, to come out, she said to tell the truth. It’s a good place to start.

She wanted to or he wanted to but he didn’t right then. That is why he took the card. That is why he stood there still battling before he left the room ‘cause he knew once he left the room you know that part was over. Further, counsel also described the evidence as “overwhelming”. [ 11 ] In making these comments to the jury, Crown counsel knew that Mr. P.A.A. denied the charges against him and that credibility was a central issue in the trial. As well, the position of the defense during the trial was that Mr.

P.A.A. lingered because he believed he was still under arrest and that he was not free to leave the room which he thought to be locked. [ 12 ] In his address to the jury, the trial judge stated: When assessing credibility, the jury may consider the motivation that a witness might have to be forthright or totally honest. In assessing [the complainant’s] credibility, the crown points out that [the complainant’s] coming forward with these allegations have caused her more heartache, more pain, than keeping quiet might have. Her step-father’s family has branded her a liar.

Her step-father’s family have, effectively, cut off all contact. What possible motivation is there to have taken the stand and testify, unless her testimony was completely true. [ 13 ] On May 13, 2011, a jury found Mr. P.A.A. guilty of sexual interference, contrary to

section 151 (

a) of the Criminal Code and not guilty of sexual assault, contrary to

section 271 of the Criminal Code . Mr. P.A.A. appealed this conviction. As noted, the Crown conceded that the conviction should be overturned and that a new trial should be ordered. ISSUES

[14] The appellant and the Crown agreed on the issues: (

i) Did the trial judge err in declining to edit Mr. P.A.A.’ statement to the police; (ii) If so, should the curative proviso be applied per section 686(1)(b)(iii) of the Criminal Code; (iii) Did the Crown’s statement to the jury, and his position at trial as read by the trial judge to the jury constitute a miscarriage ofjustice, to meet section 686(1)(a)(iii) of the Criminal Code. ANALYSIS [15] In conceding this appeal, the Crown acknowledged the inflammatory statement of its counsel at trial and the potential effect onthe verdict.

Clearly, the suggestions that “the only reasonable inference” to be drawn from the full statement of Mr.

P.A.A. to the policewas that he had done these things to the complainant and that the evidence was “overwhelming” were not in line with the duty of Crowncounsel to be moderate and fair and to avoid speculation when addressing the jury. [16] On appeal, the Crown noted three overlapping concerns that made the impugned comments wrong. [17] First, the statement made by the Crown was an attempt to rely on the demeanor of the appellant as proof of guilt, when thevideo of the statement demonstrated that there were no actions to support an inference of guilt.

On appeal, the Crown referred to theMorin Inquiry where the commissioner was highly critical of the Crown’s reliance on Morin’s supposedly unusual behaviour asevidence of his guilt. The Executive

Summary states: A number of witnesses were tendered to demonstrate that Guy Paul Morin, exhibited, through his words and conduct a consciousness ofguilt or strange conduct or demeanor consistent with guilt. The Report concludes that much of this evidence had little or no probativevalue (apart from its unreliability) and should not have been so left with the jury. The Report reflects that there is no doubt that thisevidence, which was a prominent part of the trial Crown’s closing address and trial judge’s jury instructions, when viewed cumulatively,contributed to the miscarriage of justice. (Commission of Proceedings Involving Guy Paul Morin,Executive

Summary at page 226.) [18] Second, there is the statement that the appellant wanted to “say what had happened” but did not. On appeal, the Crownacknowledged that the right to silence is retained throughout an entire interaction with the police. An individual may choose to providesome, none, or all of the information that they have. A voluntary interaction with the police is not a waiver of the right to silence. Infurther relying on R. v.

Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 the Crown quoted Abella J. at paragraph 55: Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative ofguilt. Refusing to do what one has a right to refuse to do reveals nothing. An inference of guilt cannot logically or morally emerge fromthe exercise of a protected right. Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer allpolice questions. [19] Third, the statement to the jury was not supported by the evidence.

Crown counsel, at trial, engaged in speculation when hestated that the appellant wanted to tell the truth but was concerned how his family would react. The appellant was not asked at trial if hehad wanted to confess or if he was concerned about the seriousness of the charges and the reaction of his family. On appeal, the Crownacknowledged that it cannot make assertions that are not supported by the evidence presented at trial and further acknowledged that anyattempt to fill in the gaps in the evidence with unsupported inference “is inflammatory and can cause prejudice” (see R. v.

Nugent (1995), (ON CA), 100 C.C.C. (3d) 89 (ONCA). [20] In this case, there was an allegation of sexual molestation and a denial by the accused, both before and while on the stand. Thecentral issue in the trial was credibility. As acknowledged by the Crown on appeal the use of the appellant’s demeanor and silence,buttressed by speculation, in order to bolster the complainant’s credibility and discredit the appellant was prejudicial. [21] The comments went to the assessment of credibility of the appellant - central to the trial.

As the comments were inflammatoryand prejudicial, there was an obligation on the trial judge to instruct the jury after they were made. [22] The trial judge, instead of correcting the erroneous submission of the Crown, presented these submissions to the jury as part ofthe Crown’s theory. The trial judge erred in not correcting the impression which might have been left with the jury that they couldspeculate as to factors which were not part of the evidence. [23] A quick and clear instruction by the trial judge is likely to prevent the risk of prejudice (see R. v.

Bradbury, 2004 NLCA 82,243 Nfld. & P.E.I.R. 1 at paragraph 25). Here, the trial judge did not warn the jury or make any effort to correct the comments. [24] Crown counsel attempted to bolster the credibility of the complainant. Where, as here, the central issue in the trial iscredibility, the error of the trial judge in not quickly and clearly correcting the impression left with the jury is not a harmless error. Thecurative proviso under s. 686(1)(b)(iii) is not available where there is a reasonable possibility that the verdict would have been differentif the error had not been made.

Here it is clear that the proviso cannot be applied. The evidence was not “overwhelming”. A new trialwas ordered because there exists the possibility of a substantial wrong or miscarriage of justice. [25] I would add the following additional comment: Care should be taken to apply the correct test to determine admissibility ofportions of a statement to police where an accused remains silent. More is required than a determination of probative value versusprejudicial effect. In R. v.

Chambers, (SCC), [1990] 2 S.C.R. 1293, Cory J. states at 1318: In my view, unless the Crown can establish a real relevance and a proper basis for their admission, neither the questions by theinvestigating officers nor evidence as to the ensuing silence of the accused should be admitted.

CONCLUSION [ 26 ] The appeal is allowed and a new trial ordered. _______________________ C.W. White, J.A. I concur: _____________________ C.K. Wells, J.A. I concur: _____________________ L.D. Barry, J.A.