Law Times

Page 12 June 1, 2015 • Law Times www.lawtimesnews.com Partial police statements a tricky area for Crown, defence By Shannon Kari Law Times I n a recent ruling, the Ontario Court of Appeal analyzed the limits on what's permissible in Crown cross- examination when a defendant has given a statement to police on some as- pects of the allegations. The appeal court's ruling in R. v. W.L. earlier this year stressed that the right to silence isn't an all-or-nothing proposi- tion. But attempting to clarify partial ex- planations once a matter has gone to trial is still a potentially risky proposition and a tough call for defence counsel. "It is a classic criminal law issue," says Howard Krongold, an Ottawa defence lawyer. "You have the law and you have reality." The appeal came after a jury in New- market, Ont., had convicted W.L. of sex- ual assault and sexual interference. The defendant denied the allegations at trial. He told the jury he hadn't provided a fuller explanation to police in a statement about certain allegations because his "mind was running" and he was afraid. The Crown cross-examined W.L. in a number of areas he didn't address with police as well as why he took so long to provide an "innocent" explanation. At the Court of Appeal, the Crown argued that once he testified about some part of what he had told police or omitted, W.L. had "opened the door" to a much broader cross-examination. The Court of Appeal disagreed and found that Crown at trial had gone beyond the permissible limits. "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 oth- ers," wrote Justice Christopher Speyer, sitting on the Court of Appeal as an ad hoc member. "An accused can- not be cross-exam- ined on matters on which he has chosen to remain silent," add- ed Speyer in a deci- sion with justices Ei- leen Gillese and Peter Lauwers concurring. An exception to the general rule arises when an accused has made it an issue at trial, according to Speyer. Still, the Crown cross-exam- ination is "confined to reasonable limits so as to minimize the potential for trial unfairness," said the Court of Appeal. A "full-scale" attack on the credibility of the defendant, as happened in W.L., goes too far, wrote Speyer. The trial judge, Justice Gregory Mul- ligan, didn't provide a proper limiting instruction, the appeal court concluded. "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 fail- ure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial," wrote Speyer. As well, the jury should have been aware that the de- fendant wasn't under any duty or obliga- tion to disclose infor- mation to the police, the Court of Appeal stated in quashing the convictions and ordering a new trial. Keith Wright, who represented W.L. on his appeal, notes that deciding whether to provide an ex- planation for what someone didn't say to police is a tactical de- cision at trial. "But it does not make you a sitting duck" for the Crown on cross-ex- amination, says Wright, a Toronto defence lawyer who specializes in appeals. "Don't think you have a duty to ex- plain. That arguably opens a can of worms," he adds. Regardless of the course of action, "it is a difficult situation for defence coun- sel" if a client has spoken to police and provided explanations about some of the allegations, says Krongold, a partner at Abergel Goldstein & Partners LLP in Ottawa. "An accused can give as much or as little of a statement as he wishes," says Krongold, noting the trier of fact can't then "hold it against him" when it comes to unexplained issues. But there are concerns when it comes to jury trials. "They may be wondering why did you talk about some things and not others," says Krongold. "You don't know how a jury is going to interpret it." For a juror, the legal principles in this area may be somewhat counterintuitive. "People believe, once you start speaking, you have waived the right to silence," says Krongold. Even in judge-alone trials, judges may apply partial statements improperly. In its decision in W.L., the Court of Appeal cited one of its rulings in 2009 where it quashed convictions because a Superior Court judge had applied an adverse in- ference against a defendant for "failing to volunteer" an explanation in a sexual assault case. Providing any explanation about gaps in a statement to police will open the door for the Crown, although it's some- times difficult to determine the limits of what's permissible on cross-examination, says Krongold. "It may not be 100 per cent clear on how far it opens the door. Where Crowns get into trouble is when the door gets opened on one omission and they cross-examine on every omis- sion," he adds. Another possible route for the defence is to seek to have statements to police ed- ited. "Hive off the parts you do not want to speak about in court," says Krongold. In a jury trial, though, the Crown may object because it creates the impression that police weren't doing their job and asking the right questions, he notes. LT FOCUS Rejoice. Serengeti lets you take charge and take control of your entire legal landscape. You can organize and analyze everything from documents to deadlines, billing to budgets, pricing to profi tability, all with one surprisingly simple, maintenance-free system. In fact, Serengeti is so easy to use it's almost instinctive. Serengeti also allows you to collaborate, compare and share data more effectively than ever. Used by more than 18,000 in-house counsel and 21,000 law offi ces from international fi rms to solo practitioners, it's not only the most widely used system, it's also the highest rated. Just one more way Thomson Reuters gives you knowledge to act. To learn more, call 1-866-609-5811 or visit serengetilaw.com/canada The number one legal matter management, e-billing and performance analytics system saves you time, money and lots of headaches. Now, that's worth celebrating. 'An accused can give as much or as little of a statement as he wishes,' says Howard Krongold.

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