R. v. Creighton (D.J.) and Crawford (C.), (1993) 62 O.A.C. 91 (CA)

• Judge: Tarnopolsky, Finlayson and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 1993
• Jurisdiction: Ontario
• Citations: (1993), 62 O.A.C. 91 (CA)

R. v. Creighton (D.J.) (1993), 62 O.A.C. 91 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Donald James Creighton and Clifford Crawford (appellants)

(C5748; C5882)

Indexed As: R. v. Creighton (D.J.) and Crawford (C.)

Ontario Court of Appeal

Tarnopolsky, Finlayson and Weiler, JJ.A.

April 6, 1993.

Summary:

The accused were convicted of second degree murder. The accused Creighton was sentenced to life imprisonment without eligibility for parole for 12 years and the accused Crawford to life imprisonment without parole eligibility for 10 years. Each accused appealed his conviction, and, in the alternative, Creighton appealed against the imposition of the 12 year period of parole ineligibility.

The Ontario Court of Appeal, Weiler, J.A., dissenting in part, dismissed the conviction appeals, but allowed Creighton's sentence appeal and reduced his period of parole ineligibility to 10 years. Weiler, J.A., would have allowed Crawford's appeal, quashed his conviction and ordered a new trial.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Creighton and Crawford were convicted of second degree murder - On appeal counsel argued that Crawford's right to remain silent was violated at trial because Creighton's coun­sel brought out in cross-examination that Crawford refused to make a statement to police - The Ontario Court of Appeal held that Crawford's right to remain silent was not violated - The court noted the conflict between the constitutional rights of the co-accused (i.e., Crawford's right to remain silent and Creighton's right to make full answer and defence - both s. 7 Charter rights) - Here Creighton could not be limited from pursuing his defence - See paragraphs 10 to 17.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent - Creighton and Crawford were convicted of second degree murder - On appeal counsel argued that Creighton's right to remain silent was violated when the trial judge allowed Crawford's counsel to comment on Creighton's failure to tes­tify at trial - The Ontario Court of Appeal discussed the right of counsel for an accused to com­ment on the failure of a co-accused to testify and held that it was open to counsel for Crawford to comment on the failure of Creighton to testify - See paragraphs 10 to 31.

Civil Rights - Topic 4314

Protection against self-incrimination - Inference from accused's failure to testify - [See second Civil Rights - Topic 3160 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - The Ontario Court of Appeal discussed the issue of conflicting constitutional rights of co-accused - The court stated that "where one accused makes an attack on his co-accused and the attack is relevant to his defence, he cannot be limited by the trial judge from vigor­ously pursuing that line of defence. If it means that in so doing he infringes on some constitutionally protected right of his co-accused, then the remedy of the co-accused is to ask for severance ... Failing a request for severance, the trial judge is restricted to instructing the jury that both accused are entitled to exercise their con­stitutional rights ..." - See paragraphs 14 to 16.

Cases Noticed:

R. v. McFall, [1980] 1 S.C.R. 321; 27 N.R. 420; 48 C.C.C.(2d) 225; 100 D.L.R.(2d) 403, refd to. [para. 15].

R. v. Guimond, [1979] 1 S.C.R. 960; 26 N.R. 91; 44 C.C.C.(2d) 481; 94 D.L.R.(3d) 1; 8 C.R.(3d) 185, refd to. [para. 15].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [para. 18].

R. v. Wooley (1988), 25 O.A.C. 390; 40 C.C.C.(3d) 531; 63 C.R.(3d) 333 (C.A.), refd to. [para. 18].

R. v. Symonds (1983), 1 O.A.C. 103; 9 C.C.C.(3d) 225; 38 C.R.(3d) 51 (C.A.), refd to. [para. 18].

R. v. Robertson (1975), 21 C.C.C.(2d) 385; 29 C.R.N.S. 141 (Ont. C.A.), refd to. [para. 18].

R. v. Naglik (1991), 46 O.A.C. 81; 3 O.R.(3d) 385; 65 C.C.C.(3d) 272 (C.A.), refd to. [para. 20].

R. v. Wickham (1971), 55 C.R. App. R. 199 (C.A.), refd to. [para. 22].

R. v. Silvini (1991), 50 O.A.C. 376; 5 O.R.(3d) 545; 68 C.C.C.(3d) 251; 9 C.R.(4th) 233 (C.A.), refd to. [para. 26].

U.S.A. - see United States.

United States v. Griffith, 756 F.2d 1244 (6th Cir.), cert. denied (1985), 47 U.S. 837, refd to. [para. 27].

United States v. Cain (1976), 544 F.2d 1113 (1st Cir.), refd to. [para. 27].

United States v. Berkowitz (1981), 662 F.2d 1127 (5th Cir.), refd to. [para. 27].

United States v. McClure (1984), 734 F.2d 484 (10th Cir.), refd to. [para. 27].

United States v. Mena, 863 F.2d 1522 (11th Cir.), cert. denied (1985), 474 U.S. 837, refd to. [para. 27].

De Luna v. United States (1962), 308 F.2d 140 (5th Cir.), refd to. [para. 28].

R. v. Boss (1988), 30 O.A.C. 184; 46 C.C.C.(3d) 523; 68 C.R.(3d) 123; 42 C.R.R. 166 (C.A.), refd to. [para. 29].

Avon v. R., [1971] S.C.R. 650; 4 C.C.C.(2d) 357; 21 D.L.R.(3d) 442, refd to. [para. 29].

R. v. Stevenson (1990), 41 O.A.C. 1; 58 C.C.C.(3d) 464 (C.A.), refd to. [para. 51].

R. v. Machado (1989), 50 C.C.C.(3d) 133; 71 C.R.(3d) 158 (B.C.C.A.), refd to. [para. 51].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(6) [para. 14 et seq.].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 14]; sect. 11(c) [para. 20 et seq.].

Evidence Act (Can.), 1985 - see Canada Evidence Act.

United States Constitution, Fifth Amend­ment, generally [paras. 27, 28].

Authors and Works Noticed:

Ratushny, Self-Incrimination in the Cana­dian Criminal Process (1979), pp. 186, 187 [para. 48].

Counsel:

Christopher D. Hicks, for the appellant Clifford Crawford;

David M. Humphrey, for the appellant Donald Creighton;

C. Jane Arnup and Elizabeth Rennie, for the Crown respondent.

This appeal was heard on February 10, 1993, before Tarnopolsky, Finlayson and Weiler, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on April 6, 1993, including the following opinions:

Finlayson, J.A. (Tarnopolsky, J.A., con­curring) - see paragraphs 1 to 35;

Weiler, J.A., dissenting in part - see paragraphs 36 to 53.