R. v. Pavlov

Date: 20090812 Docket: 09/01 Citation: 2009 NLCA 44 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: VITALY PAVLOV APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Mercer & Barry, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, 200801T2240 Appeal Heard: May 20, 2009 Judgment Rendered: August 12, 2009 Reasons for Judgment by Barry, J.A. Concurred in by Mercer, J.A. Additional Reasons by Rowe, J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Elaine Reid Page: 2 Barry, J.A.: [1] A trial judge found Vitaly Pavlov guilty of having care and control of a motor vehicle while impaired by alcohol. A Summary Conviction Appeal Court judge1 applied the curative provision of s. 686(1)(b)(iii) of the Criminal Code, after finding the trial judge had erred in drawing an adverse inference from the silence of the accused at the time of his arrest in respect of an alibi. On May 20, 2009, following submissions, this Court allowed the appeal from the Summary Conviction Appeal Court. These are the reasons for that decision. Background Facts [2] Crown witnesses testified that just after midnight on April 1, 2007 a white vehicle almost collided with two other vehicles in the area of New Gower Street and Springdale Street in St. John’s. In a telephone call to police, one witness initially identified the vehicle as a white Chevrolet Corsica, licence plate HTT941. After circling around and locating a white car on Gilbert Street, a cul-de-sac off Springdale Street, the witness called again and corrected this to a white Cavalier, licence plate HTT945. [3] When police arrived at 12:06 a.m., they located Mr. Pavlov in a white Chevrolet Cavalier, licence plate HTT 945. Police testified Mr. Pavlov was passed out with a strong smell of alcohol emanating from the vehicle. The car keys were in his hand and he was incoherent when awoken. [4] Mr. Pavlov testified he had been at his residence on Gilbert Street from approximately 11:30 p.m., after being driven around to several bars in the Pavlov vehicle by a friend. Mr. Pavlov said he had been unable to drive himself because he was upset after learning of the illness of his mother living in the Ukraine. He testified he went outside to his car to have a cigarette as his wife was pregnant and sensitive to the smell of smoke. The friend and Mr. Pavlov’s wife supported his alibi testimony. [5] The Summary Conviction Appeal Court judge noted that the trial judge had turned his mind to issues of reasonable doubt, credibility and circumstantial evidence and found that the appeal centered around the following statement of the trial judge: 1 R. v. Pavlov, 2008 NLTD 193. Page: 3 … In these particular circumstances, you look at the fact as well that Mr. … that there was an interpreter provided to Mr. Pavlov. When the police arrived at the police station care was taken to do that and at no time at that process or in that entire process did Mr. Pavlov bring forward that there was a mistake made, he wasn’t driving. He didn’t raise any suggestion that it wasn’t him involved in this particular matter, and as indicated that this alibi was an alibi that in my view was a convenient fabrication to address each and everyone of the obstacles which Mr. Vitaly had to surmount to I guess, present his case to the court. [6] The Crown at the initial appeal and before this Court agreed that Mr. Pavlov had the right to remain silent and that the trial judge erred in the above statement. [7] The Summary Conviction Appeal Court judge agreed with the Crown that the statement of the judge was made near the end of a thoughtfully considered ruling but disagreed that it was simply obiter dicta. She concluded the trial judge indicated by this statement that he regarded the silence of the accused as having some relevance to his credibility. She found this constituted an error in law and amounted to a breach of Mr. Pavlov’s right to silence. [8] The Summary Conviction Appeal Court judge went on, however, to hold that, while a breach of the right to silence constituted a serious error, the result of which in the normal course would be a quashing of the conviction and a new trial, in this case it was one of those “rare situations” where the error did not impact in any major way on the decision of the court and was ultimately “harmless” in nature. [9] The Summary Conviction Appeal Court judge noted the trial judge had relied upon the evidence of a witness who was “99% sure” that it was Mr. Pavlov who was behind the wheel both on Gower Street and on Gilbert Street. She also noted the “incredulity” of the trial judge regarding the evidence of Mr. Pavlov and his friend, particularly the fact that the friend drove the accused to two bars and did not go in but, rather, waited outside for Mr. Pavlov for an indeterminate period. The trial judge totally rejected the credibility of the defence evidence. The Summary Conviction Appeal Court judge pointed out that the total rejection of the defence evidence was made prior to the erroneous statement of the trial judge regarding the significance of Mr. Pavlov’s silence regarding his alibi. Also, the trial judge had confirmed that he had accepted the evidence of the Crown witnesses. In these circumstances, the Summary Conviction Appeal Court judge concluded, the Crown had met the onus of satisfying her that the verdict Page: 4 would have been the same if the error had not occurred and she applied the curative provision of the Code. In her conclusion, the Summary Conviction Appeal Court judge stated: Accordingly, I find the trial judge did make an error of law in drawing an adverse inference from the silence of the accused at the time of his arrest in respect of an alibi which the accused properly tendered to the Crown at a later date, as required. Although, generally, this may be viewed as a major error in the present circumstances it had a minor impact on the decision of the trial judge as reflected in his reasons. Therefore, I deem this to be one of those cases where it is appropriate to apply the curative provision found in s. 686(1)(b)(iii) of the Criminal Code of Canada. In other words, the facts are so overwhelmingly in favour of conviction that depriving the appellant of the new trial is justified. The Criminal Code Provisions [10] Section 686(1) of the Criminal Code reads: 686.(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or Page: 5 (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; (c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict, and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or (d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances. [Emphasis added.] The Issue [11] Two issues arise: (i) Was the trial judge’s statement a “harmless error”, or an error of a minor nature having no impact on the verdict, which would justify applying the curative provision? (ii) If the statement was not a harmless error or an error of a minor nature having no impact on the verdict, should the curative provision be applied because the evidence was so overwhelming that there was no substantial wrong or miscarriage of justice? The Case Law [12] The Summary Conviction Appeal Court judge, at paras. 20-23, provided a good summary of the case law on the curative provision. In R. v. Charlebois, [2000] 2 S.C.R. 674, at paras. 10 and 11, Bastarache J. stated for the majority: 10 Section 686(1)(b)(iii) of the Code authorizes an appeal court to dismiss an appeal, despite the presence of an error at trial, where the court believes there has been no "substantial wrong or miscarriage of justice". In Mahoney v. The Queen, [1982] 1 S.C.R. 834 (S.C.C.), at p. 852, McIntyre Page: 6 J. explained how the Court is to determine whether a substantial wrong or miscarriage of justice has occurred: [T]he proviso may be applied only following a legal determination that errors have been made at trial, but that "no substantial wrong or miscarriage of justice has occurred", and then only according to a strict legal test. The determination of what will constitute a substantial wrong or miscarriage of justice must involve the construction of those words in the context in which they are used in the Statute, and such statutory construction has long been considered a matter of law. The Court's decision involves an analysis of the rights accorded by law to an accused and the measurement of the impact of the errors which were made at trial. Once an appellant establishes in the Court of Appeal that errors of law were made at his trial he becomes entitled to have his appeal allowed and a new trial or an acquittal, depending on the circumstances, unless the proviso is applied to annul those rights. The Court of Appeal must consider the errors against the background of the whole trial. While a reconsideration of the evidence is involved, clearly the inquiry goes far beyond the determination of matters of fact. [Emphasis by Bastarache J.] In Mahoney, the Court applied the proviso to cure the trial judge's error (instructing the jury that an adverse inference could be drawn from the accused's delay in revealing his whereabouts) due to the overwhelming weight of the real evidence. 11 The proper application of s. 686(1)(b)(iii) was recently addressed in R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11 (S.C.C.). Writing for the dissent, Major J. adopted his statement in R. v. Bevan, [1993] 2 S.C.R. 599 (S.C.C.), which precisely outlines the threshold for applying the proviso. Major J. confirmed at para. 104 that the task of the appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made. Implicit in my reasons in Brooks is my acceptance of his statement as a proper explanation of the law. As conceded by the Crown, the proviso should only be applied where the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. (R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916) Page: 7 [13] Also, in R. v. Khan, [2001] 3 S.C.R. 823, at para. 26, Arbour J. for the majority described two types of errors: Most of the case law dealing with the nature of the error of law contemplated by s. 686(1)(a)(ii) arises in the context of the curative proviso which brings about an assessment of the nature and the seriousness of the error. There are essentially two classes of errors which have been identified by reviewing courts and which have led to a proper application of the proviso. The first category is that of so-called ‘harmless errors’, or errors of a minor nature having no impact on the verdict. The second category encompasses serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice. [14] This was stated another way by Sopinka J. for the majority in R. v. S.(P.L.), [1991] 1 S.C.R. 909, at p. 916: On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which a conviction could reasonably be based. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge or jury who have all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to make that decision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and second by the Court of Appeal. There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result of the combined effect of s. 686(1)(a)(ii), (b)(ii) and (iii) and s. 686(2). By virtue of s. 686(1)(b)(ii) the Court of Appeal cannot dismiss the appeal if it has found an error of law unless the curative provision embodied in s. 686(1)(b)(iii) applies. If the appeal is not dismissed it must be allowed, and pursuant to the provisions of s. 686(2) either an acquittal or a new trial must be ordered. [15] Finally, the Summary Conviction Appeal Court judge referred to R. v. McKelvey (1995), 102 Man. R. (2d) 44, (Man. C.A.) where Scott C.J.M., in finding the trial judge had completely disbelieved the explanation of an accused and, further, that there was no other evidence upon which to base a reasonable doubt, observed at paras. 17 and 18: Page: 8 17 On the particular facts of this case to say that the accused's evidence, although rejected, was nonetheless capable of raising a reasonable doubt does not comport with reality. Similarly, there is no other admissible evidence capable of raising a reasonable doubt. 18 In coming to this determination, I have not reweighed or reconsidered the evidence. Rather I have examined the evidence to see what the state of the record is following the critical decision that the accused's explanation was not worthy of belief; in other words to see if it is one of those cases where the only realistic result of a new trial would be a second conviction. [16] The parties in the present case accept Charlebois, Khan and S.(P.L.) as setting out the applicable law but disagree on how the law should be applied on the particular facts of this case. In this regard, the statement of Deschamps J. for the majority in R. v. Trochym, [2007] 1 S.C.R. 239, at para. 82, should be noted: The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to appellate review. The standard applied by an appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case “beyond a reasonable doubt” at trial. This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome. [17] Where credibility is critical for the issue of reasonable doubt, the statement of Abella J. for the majority in R. v. C.L.Y., [2008] 1 S.C.R. 5, at paras. 6 and 8, warrants emphasis: [6] … This Court has consistently warned that verdicts of guilt should not be based on ‘whether [triers of fact] believe the defence evidence or the Crown’s evidence’ … . Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused … . The following suggested steps in [R. v. W.(D), [1991] 1 S.C.R. 742, at p. 758] are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt: Page: 9 First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. ….. [8] … the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, [triers of fact] are left with a reasonable doubt as to the accused’s guilt… . Analysis (i) Was the error “harmless? [18] The Summary Conviction Appeal Court judge’s conclusion that the trial judge’s error was harmless is inconsistent with her finding at para. 18, that the error “formed part of the trial judge’s considerations in arriving at his decision”. Also, since the error by the trial judge influenced his assessment of Mr. Pavlov’s credibility, it was critical for the issue of reasonable doubt and could not be regarded as “of a minor nature having no impact on the verdict” [Khan, at para. 26]. (ii) Was there no substantial wrong or miscarriage of justice? [19] Since the error cannot be viewed as harmless, the question becomes whether the curative provision should be applied because the evidence was so overwhelming there was no substantial wrong or miscarriage of justice. [20] McKelvey may be distinguished on the particular facts of the case in that there Scott C.J.M. could see nothing on an examination of the record which could give rise to a reasonable doubt once it had been decided the accused’s explanation was not worthy of belief. In the present case, the record shows initial errors by an eyewitness and questions concerning the extent of the initial view of the driver, which another trial judge might consider sufficient on the totality of the evidence to raise a reasonable doubt. Page: 10 [21] The Summary Conviction Appeal Court judge correctly noted the trial judge had erred in ignoring the right of the accused to remain silent regarding alibi at the time of the arrest. The Summary Conviction Appeal Court judge erred, however, in stating her task was to “determine whether there is any reasonable possibility that the verdict of the trial judge would have been different had the error not been made.” As Sopinka J. indicated in S.(P.L.), at para. 43, and the majority confirmed in Khan, at paras. 29-31, once an error as to law has influenced a verdict so as to remove it from the category of “harmless” error, the appropriate inquiry is whether “the evidence is so overwhelming that a trier of fact would inevitably convict”. [Emphasis added.] The question is whether any trial judge, not the particular judge who heard the case, would inevitably have had to come to the same conclusion as to guilt beyond a reasonable doubt, when the credibility of the accused is properly assessed. [22] Considering the initial errors by the Crown witness regarding the make of car and the licence plate numbers and keeping in mind the frailties of eyewitness testimony, I conclude this is not a case where the accused should be deprived of the right to have a new trial judge decide whether, on the totality of the evidence (see W.D. and C.L.Y.), guilt has been proven beyond a reasonable doubt. On the facts, I am not prepared to conclude the result is inevitable. [23] The Summary Conviction Appeal Court judge accepted that, once the trial judge found a Crown witness put the accused behind the wheel of the erratically driven car, the primary issue was determined and the verdict would have been the same if the error on the right to silence had not occurred. With respect, the question is not whether this trial judge was entitled to accept the evidence of the Crown but whether there was any possibility any other trial judge would have arrived at the conclusion that the evidence raised a reasonable doubt that the accused was driving, keeping in mind the initial errors of the eyewitness regarding the make of car and registration numbers and his limited opportunity to view the driver’s face. The Crown’s case depended upon purported eyewitness identification by a person whose initial view of the driver of a white vehicle was a brief one. Mr. Pavlov should be entitled to have this testimony considered in the context of the totality of the evidence, including his own denial of driving, where the credibility of his denial is assessed without the cloud of an improper inference from his silence as to alibi. Page: 11 Summary and Disposition [24] In summary: (i) The trial judge’s error was not harmless as it influenced his assessment of Mr. Pavlov’s credibility, a matter critical for the finding of proof beyond a reasonable doubt. (ii) The curative provision could not be applied as, considering the totality of the evidence, it is not inevitable that another trial judge would come to the same conclusion as to guilt beyond a reasonable doubt. [25] The appeal is allowed and the matter remitted for a new trial. ___________________________ L.D. Barry, J.A. I concur: _______________________ K.J. Mercer, J.A. Rowe, J.A. [26] I concur in the reasons and the result as set out by my brother Barry. I add the following as obiter. [27] The jurisprudence is more complex than it need be, in that it states two tests that, on close examination, really are only one. The first test is whether the error is “harmless” or “serious” (R. v. Khan, supra, para. 26). If the error is “serious”, then the test is whether there is “any reasonable possibility that the verdict [could] have been different” (R. v. Charlebois, supra, para. 11). Page: 12 [28] Is not the initial distinction between a “harmless” and a “serious” error another way of saying is there “any reasonable possibility that the verdict [could] have been different”? It seems to me that it is. If one were to take a lex parsimoniae approach, the first test would collapse into the second. ________________________ M. Rowe, J.A.