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The Court of Appeal ordered a new trial after finding the trial judge improperly treated the appellant’s silence during a police interview as a tacit admission of guilt.
The Ontario Court of Appeal dismissed an appeal from a sexual assault conviction and sentence, rejecting arguments about W.D., silence on arrest, evidence use, and demeanour.
The application for appointment of counsel under s.684 is dismissed because the applicant did not advance an arguable appeal: Arradi establishes that an accused who elects to testify must answer questions and refusal implicates credibility and may constitute contempt; Hart applies to unresponsive Crown witnesses, not to an accused who elects to testify and refuses to answer, and the asserted sentencing ground was not arguable.
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The Court held that read as a whole the jury charge adequately instructed jurors to consider the absence of audio/video recording, to not use the appellant's silence against him, and to apply the W.(D.) principle to the trial testimony; trial counsel's acceptance of the charge and the contextual distinctions from cited authorities meant no corrective instruction or expanded W.(D.) direction was required, so there was no reversible error and the appeal was dismissed.
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Voir dire reasons in R. v. McIntyre on the admissibility of police and hospital statements in a second-degree murder prosecution.
The court held that evidence that the defendant was aware police were seeking him, his failure to contact police, and his pre-booked travel plans could not be used as circumstantial evidence of guilt because admitting that material would offend the right to silence and risk exposing solicitor-client communications and other prejudicial collateral matters; accordingly those portions and other prejudicial material (police opinion, social media references, specific drug details and certain invocations of silence) must be redacted from the videotaped police statement and some recordings excluded.
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The appeal is dismissed because the trial judge's jury instructions were legally sound in context: demeanour evidence was properly qualified and the BSO's opinion excluded; the right to silence instruction, read with the Customs Act statutory duty at the border, was not prejudicial; and the Crown's closing advanced permissible common‑sense inferences rather than improper speculation.
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The court found Charlene Alexander’s post-arrest statement voluntary and admissible after a voir dire on the confessions rule, police caution, and alleged oppression.
The Crown proved beyond a reasonable doubt the statement was voluntary; the accused was not a suspect or detained, the officer's entry into the vestibule was covered by a common law implied invitation, and the absence of a caution or recording did not materially impair voluntariness or admissibility, therefore the statement is admissible and the Charter s.9 and s.10(b) applications fail.
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Trial counsel unilaterally prepared and disclosed the appellant's statement to the Crown without informed instructions or adequate advisement about settlement privilege and the right to silence; that uninformed waiver and failure to warn about cross‑examination were professionally incompetent, rendered the trial process unfair and undermined confidence in the verdict; fresh evidence supporting the ineffective assistance claim admitted and convictions set aside with a new trial ordered.
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