R. v. Creighton (D.J.) and Crawford (C.), (1995) 81 O.A.C. 359 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 04, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1995), 81 O.A.C. 359 (SCC)

R. v. Creighton (D.J.) (1995), 81 O.A.C. 359 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Clifford Crawford (appellant) v. Her Majesty The Queen (respondent)

(23711)

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

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

March 30, 1995.

Summary:

The accused, Creighton and Crawford, were tried jointly on a charge of second degree murder respecting the beating death of another man. Crawford made no statement to police, but testified at trial, denying that he aided and abetted the assault. Creighton did not testify, but his version of events was introduced through a videotaped statement he made to police upon his arrest. Crawford was cross-examined by Creigh­ton's counsel respecting Crawford's failure to make a statement to police. The accused were both convicted. The accused appealed. Crawford claimed that the trial judge erred in allowing Creighton's counsel to cross-examine him on his failure to give a state­ment to the police, thus infringing his right to remain silent and the trial judge erred in not instructing the jury to disregard that cross-examination on his pretrial silence.

The Ontario Court of Appeal, Weiler, J.A., dissenting, in a decision reported 62 O.A.C. 91, dismissed the appeals. Crawford appealed again, raising the same issues. Creighton did not appeal.

The Supreme Court of Canada allowed the appeal and directed a new trial.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to make full answer and defence - The Supreme Court of Canada discussed the right to make full answer and defence as guaranteed by s. 7 of the Charter - See paragraphs 27, 28.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to make full answer and defence - The Supreme Court of Canada discussed a co-accused's right in a joint trial to introduce evidence of pretrial silence by another co-accused and the use that could be made of such evi­dence - The court considered the com­peting rights of co-accused (right to make full answer and defence vs. right to remain silent) - To resolve these competing inter­ests, a balance must be struck between the competing rights taking into account the state's interest in joint trials - The court discussed how a judge sitting alone could balance these rights and use evidence of pretrial silence - Guidelines were estab­lished for instructing juries on the rights involved, approaching the use of the evi­dence of silence and its limited purpose - See paragraphs 17 to 38.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to make full answer and defence - The Supreme Court of Canada discussed the principles relating to joint trials and severance and how these relate to the right of one co-accused to remain silent and the right of the other co-accused to make full answer and defence -See paragraphs 29 to 32 - The court stated that "the general rule, therefore, is that the respective rights of the co-accused must be resolved on the basis that the trial will be a joint trial. This does not mean, how­ever, that the trial judge has been stripped of his discretion to sever. That discretion remains and can be exercised if it appears that the attempt to reconcile the respective rights of the co-accused results in an injustice to one of the accused" - See paragraph 32.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent - The Supreme Court of Canada discussed the right to remain silent as guaranteed by s. 7 of the Charter - See paragraphs 21 to 26.

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 murder following a joint trial - Crawford appealed, arguing that his right to remain silent was violated because Creighton's coun­sel cross-examined him respecting his refusal to make a statement to police and the trial judge failed to instruct the jury to disregard the cross-examination respecting Crawford's pretrial silence - The Supreme Court of Canada rejected Crawford's argument that Creigh­ton should not have been allowed to cross-examine on Crawford's silence or that the jury should have been instructed to disregard this evidence - The court how­ever, allowed the appeal and ordered a new trial, because the jury charge did not contain proper instructions limiting the use of the evidence to credibility.

Civil Rights - Topic 3160

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

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See second and third Civil Rights - Topic 3133 ].

Criminal Law - Topic 5471

Evidence and witnesses - Joint trials - General - [See second and third Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Naglik (1991), 46 O.A.C. 81; 65 C.C.C.(3d) 272 (C.A.), refd to. [para. 13].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161; 54 C.C.C.(3d) 417; 76 C.R.(3d) 129; 67 D.L.R.(4th) 161; 29 C.P.R.(3d) 97; 47 C.R.R. 1, refd to. [para. 21].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 21].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 21].

R. v. R.J.S. (1995), 177 N.R. 81; 78 O.A.C. 161 (S.C.C.), refd to. [para. 21].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [para. 22].

R. v. Vézeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 22].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161; 83 C.C.C.(3d) 526, refd to. [para. 24].

R. v. Cuff (M.N.) (1989), 75 Nfld. & P.E.I.R. 1; 234 A.P.R. 1; 49 C.C.C.(3d) 65 (Nfld. C.A.), refd to. [para. 24].

R. v. Wickham (Anthony John) et al. (1971), 55 Cr. App. R. 199 (C.A.), refd to. [para. 24].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 26].

R. v. McLaughlin (1974), 2 O.R.(2d) 514 (C.A.), refd to. [para. 27].

R. v. Ma (1978), 44 C.C.C.(2d) 537 (B.C.C.A.), refd to. [para. 27].

R. v. Jackson and Davy (1991), 51 O.A.C. 92; 68 C.C.C.(3d) 385, affd. on other grounds, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 27].

R. v. Kendall and McKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (C.A.), refd to. [para. 27].

Lowery (Christopher Russell) v. R., [1974] A.C. 85 (P.C.), refd to. [para. 27].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533 (B.C.C.A.), refd to. [para. 27].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 28].

R. v. Dersch et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 43 O.A.C. 256; 36 Q.A.C. 258; 60 C.C.C.(3d) 132, refd to. [para. 28].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340; 1 C.R.(4th) 285, refd to. [para. 36].

R. v. Gilbert (1977), 66 Cr. App. R. 237 (C.A.), refd to. [para. 37].

Bruce v. R. (1987), 61 Aust. L.J. Rep. 603 (Aust. H.C.), refd to. [para. 43].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 50 C.R.(3d) 395, refd to. [para. 44].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(6) [para. 13].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 9]; sect. 11(c) [para. 13].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 16].

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

Authors and Works Noticed:

Elliot, D.W., Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused, [1991] Crim. L. Rev. 5, p. 17 [para. 27].

McNicol, Law of Privilege (1992), p. 286 [para. 25].

Paciocco, David M., Charter Principles and Proof in Criminal Cases (1987), pp. 554, 555, 556 [para. 43].

Counsel:

Christopher D. Hicks, for the appellant;

C. Jane Arnup, for the respondent.

Solicitors of Record:

Hicks, Finnestad, Toronto, Ontario, for the appellant;

C. Jane Arnup, Toronto, Ontario, for the respondent.

This appeal was heard on November 4, 1994, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on March 30, 1995, including the following opinions:

Sopinka, J. (Lamer, C.J.C., La Forest, L'Heureux-Dubé, Gonthier, Cory, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 41;

McLachlin, J. (concurring in the result) - see paragraphs 42 to 47.