In R. v. Guillemette, 2022 ONCA 436, June 2, 2022, the accused was convicted of the offence of impaired driving causing bodily harm.  At her trial, she argued that the defence of necessity applied.  She testified that she had been attacked by two men and had to drive her vehicle, despite being impaired, in order to escape from them.  She was subsequently arrested near her residence.  During cross-examination, she was questioned as to why she had not complained to the police officer (Constable Thompson), who arrested her, about the alleged attack.

In convicting the accused, the trial judge stated:

The scenario described was that she was forced to break the law and obviously damage her car. She was completely innocent in all of this. Of course she would explain this to police at her first opportunity. Even though they waited for an extra ten minutes, waiting to be told where to go for the Intoxilyzer tests, PC Thompson said she did not mention anything along those lines to him.

The accused appealed from conviction, arguing that the trial judge committed “two fundamental legal errors at trial, both of which had the effect of breaching her right to silence” (at paragraph 27):

First, the appellant contends that the trial judge erred by allowing the trial Crown to adduce evidence about the appellant’s pre-trial silence surrounding the alleged attack. Second, the appellant argues that, even if the Crown was properly permitted to elicit that evidence, the trial judge clearly misused the appellant’s pre-trial silence as evidence from which he could draw an adverse inference of guilt. Individually or combined, these errors are said to be fatal to the verdicts in this case and a new trial is called for. 

The Court of Appeal noted that “the right to silence exists at common law and is conferred by s. 7 of the Canadian Charter of Rights and Freedoms: With few exceptions, such as where an alibi defence is raised, silence cannot be used to incriminate an accused or to impeach an accused’s credibility…Accordingly…the prosecution cannot suggest that the accused’s silence prior to trial informs the veracity of the accused’s testimony at trial” (at paragraphs 36 and 37).

The Court of Appeal concluded that the trial judge’s use of the accused’s silence resulted in an unfair trial (at paragraphs 65 to 67):

The appellant argues that the reasons demonstrate a clear breach of the right to silence: not only did the trial judge find the appellant lied under oath, he found that she fabricated the story because she did not immediately tell the police at the earliest opportunity about the attack, despite having time and opportunity to do so. The respondent says the reasons reveal the trial judge did nothing more than consider the appellant’s credibility against the conflict in the evidence as it arose between Cst. Thompson and the appellant. We agree with the appellant.

Having concluded that, “of course”, if she had actually been attacked, the appellant would have told the first police officer she saw, and that she did not tell anyone until the next day, the trial judge rejected her evidence and convicted her. In making these findings, the trial judge’s reasons extended beyond the narrow conclusion that the appellant lied under oath and included the fact that, if her trial version of events were true, she would have told a police officer prior to having had a “chance to think about it.” This was a misuse of the right to silence, resulting in an unfair trial.

As the trial judge himself described, the question of whether the appellant told the officer she was attacked was a “key” issue. Therefore, it cannot be said that the verdicts would have been the same without the errors relating to silence.