R. v. Prokofiew (E.), 2010 ONCA 423

• Judge: Doherty, Feldman, MacPherson, Blair and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 21, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 423;(2010), 264 O.A.C. 174 (CA)

R. v. Prokofiew (E.) (2010), 264 O.A.C. 174 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JN.039

Her Majesty the Queen (respondent) v. Ewaryst Prokofiew (appellant)

(C42992; 2010 ONCA 423)

Indexed As: R. v. Prokofiew (E.)

Ontario Court of Appeal

Doherty, Feldman, MacPherson, Blair and Juriansz, JJ.A.

June 10, 2010.

Summary:

The Crown alleged that the accused participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate HST that was then not remitted to the federal government as required.

The Ontario Superior Court convicted the accused of fraud. He was sentenced to three years' imprisonment. The accused appealed from his conviction and from his sentence.

The Ontario Court of Appeal dismissed the appeals.

Editor's Note: For another decision related to this accused, see (2008), 240 O.A.C. 77.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See second Courts - Topic 129 ].

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - The accused was convicted of fraud - He appealed, asserting, inter alia, that his rights under s. 11(b) of the Charter were infringed and that the proceedings should have been stayed as a result of the unreasonable delay in bringing him to trial on these charges - The Ontario Court of Appeal dismissed the appeal - The accused was arrested in August 1999 and did not go to trial until November 2004 - A 63 month delay between arrest and trial obviously merited scrutiny - However, this trial was one of three complicated and interrelated fraud trials arising out of a lengthy and complex investigation involving several different police forces - It was acknowledged that the trials could not proceed together - There was no merit to the s. 11(b) claim - In light of the number and complexity of the charges, and the reality that the charges had to be prosecuted separately and sequentially, it was inevitable that the last trial would take place years after the arrest - There was no basis for criticizing the Crown for the order in which it chose to prosecute the cases or for the manner in which the individual charges made their way through the process - The accused agreed to this sequence of trials - See paragraphs 58 to 61.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3264 ].

Civil Rights - Topic 4947

Presumption of innocence - Evidence and proof - Inferences - Criminal cases - Section 4(6) of the Canada Evidence Act prohibited "comment by the judge ..." regarding the failure of an accused to testify - Relying on obiter dicta in R. v. Creighton (D.J.) and Crawford (C.) (1995 S.C.C.) (Crawford) and R. v. Noble (S.J.) (1997 S.C.C.) (Noble), a trial judge determined that s. 4(6) prevented him from telling the jury that it could not use the accused's silence at trial as evidence against him - The accused appealed from his conviction, asserting that the failure to give that instruction constituted reversible error - The Ontario Court of Appeal, having determined that the obiter dicta in Crawford and Noble were not binding and should not be followed, dismissed the appeal - The question was whether there was a real risk that the jury might have used the accused's silence as evidence against him - If the accused showed a real risk that his silence was misused, that was enough to characterize the non-direction as misdirection - The trial judge made it clear that the Crown carried the burden of proof and that the accused had no obligation to testify or otherwise disprove his guilt - The trial judge tied the presumption of innocence to the burden of proof in a manner that spoke almost directly to the irrelevance of the accused's failure to testify - Taking into account the entirety of the instructions, the court was satisfied that the jury would have understood that the Crown could prove the accused's guilt based only on the evidence and that the accused's silence at trial could not be used to infer his guilt - See paragraphs 41 to 51.

Courts - Topic 129

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - The Ontario Court of Appeal discussed the distinction between binding obiter in a Supreme Court of Canada judgment and non-binding obiter, stating "[o]biter dicta will move along a continuum. A legal pronouncement that is integral to the result or the analysis that underlies the determination of the matter in any particular case will be binding. Obiter that is incidental or collateral to that analysis should not be regarded as binding, although it will obviously remain persuasive. ...  Lower courts should be slow to characterize obiter dicta from the Supreme Court of Canada as non-binding. It is best to begin from the premise that all obiter from the Supreme Court of Canada should be followed, and to move away from that premise only where a reading of the relevant judgment provides a cogent reason for not applying that obiter. The orderly and rational development of the jurisprudence is not served if lower courts are too quick to strike out in legal directions different than those signalled in obiter from the Supreme Court of Canada." - See paragraphs 19 to 21.

Courts - Topic 129

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - Section 4(6) of the Canada Evidence Act prohibited "comment by the judge ..." regarding the failure of an accused to testify - Relying on obiter dicta in R. v. Creighton (D.J.) and Crawford (C.) (1995 S.C.C.) (Crawford) and R. v. Noble (S.J.) (1997 S.C.C.) (Noble), a trial judge determined that s. 4(6) prevented him from telling the jury that it could not use the accused's silence at trial as evidence against him - The accused appealed from his conviction, asserting that the failure to give that instruction constituted reversible error or, alternatively, if the trial judge was correct, s. 4(6) was unconstitutional - The Ontario Court of Appeal held that s. 4(6) did not prohibit an instruction to the jury that an accused's failure to testify could not be used against that accused - So interpreted, s. 4(6) was constitutional - The obiter dicta in Crawford and Noble were not binding and should not be applied by this court - No authority was cited in either Crawford or Noble for the proposition that s. 4(6) precluded a trial judge from instructing the jury that it could not use an accused's failure to testify as evidence of guilt - There was strong authority from the Supreme Court of Canada predating Crawford and Noble declaring that such comments were not contrary to s. 4(6) - To treat the obiter in Crawford and Noble as binding would be to disregard the ratio decidendi of the earlier cases which this court had continued to apply - One of the primary reasons for treating obiter as binding was to preserve and promote certainty in the application of the law - Given the entirety of the s. 4(6) jurisprudence, the goal of certainty was not served by treating the obiter in Crawford and Noble as binding - Further, the obiter in Crawford and Noble played a peripheral role in both cases and, in Noble, was inconsistent with the ratio decidendi - Section 4(6) was to be applied as in the earlier cases that distinguished between a statement of an accused's right not to testify, which did not contravene s. 4(6), and a potentially prejudicial comment on an accused's failure to testify, which did contravene s. 4(6) - See paragraphs 14 to 40.

Courts - Topic 133

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Obiter dictum - [See both Courts - Topic 129 ].

Criminal Law - Topic 56

General principles - Protection against self-incrimination - Comment at trial respecting accused's failure to testify - [See Civil Rights - Topic 4947 and second Courts - Topic 129 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Civil Rights - Topic 4947 ].

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - [See Civil Rights - Topic 4947 and second Courts - Topic 129 ].

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See Civil Rights - Topic 4947 ].

Criminal Law - Topic 5314

Evidence - Witnesses - Inferences - From silence of accused or failure to explain - [See Civil Rights - Topic 4947 ].

Criminal Law - Topic 5859

Sentence - Fraud - The Crown alleged that the accused participated in a fraudulent scheme involving the fictitious sale of heavy equipment to generate HST that was then not remitted to the federal government as required - The accused was convicted of fraud and sentenced to three years' imprisonment - The Ontario Court of Appeal dismissed the accused's appeal from his sentence - The accused was the prime mover in a massive fraud against the Government of Canada which caused actual losses to Canada exceeding $3 million - Tax frauds on the public purse undermined the fiscal viability of the country and had to be treated as serious crimes meriting denunciatory sentences - Three years was well within the appropriate range for this kind of offence even if the accused was treated as a first time offender - See paragraphs 62 and 63.

Cases Noticed:

R. v. Crawford (C.) - see R. v. Creighton (D.J.) and Crawford (C.).

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, not folld. [para. 2].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, not folld. [para. 2].

R. v. Boss (1988), 30 O.A.C. 184; 46 C.C.C.(3d) 523 (C.A.), not overruled [para. 4].

R. v. Naglik (1991), 46 O.A.C. 81; 65 C.C.C.(3d) 272 (C.A.), revd. [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 12].

R. v. Morrison (D.A.) - see R. v. Oliver (J.J.) et al.

R. v. Oliver (J.J.) et al. (2005), 194 O.A.C. 284; 194 C.C.C.(3d) 92 (C.A.), refd to. [para. 12].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), refd to. [para. 12].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1, refd to. [para. 18].

R. v. McConnell and Beer, [1968] S.C.R. 802, refd to. [para. 22].

R. v. Avon, [1971] S.C.R. 650, refd to. [para. 22].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 22].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 22].

R. v. Miller (M.) (1998), 116 O.A.C. 331; 131 C.C.C.(3d) 141 (C.A.), refd to. [para. 29].

R. v. Knox (K.L.) (2006), 211 O.A.C. 164; 80 O.R.(3d) 515 (C.A.), refd to. [para. 29].

R. v. Baldwin (D.) (2004), 193 O.A.C. 55; 192 C.C.C.(3d) 165 (C.A.), refd to. [para. 29].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 29].

R. v. Biladeau (W.) (2008), 244 O.A.C. 66; 93 O.R.(3d) 365 (C.A.), refd to. [para. 29].

R. v. R.C.C. (1996), 151 N.S.R.(2d) 34; 440 A.P.R. 34; 107 C.C.C.(3d) 362 (C.A.), refd to. [para. 29].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 207 C.C.C.(3d) 372 (C.A.), refd to. [para. 29].

R. v. Bush (M.A.) (2001), 158 B.C.A.C. 55; 258 W.A.C. 55; 159 C.C.C.(3d) 161 (C.A.), refd to. [para. 29, footnote 2].

Statutes Noticed:

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

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

Authors and Works Noticed:

Stewart, Hamish, Nothing Can Come of Nothing: Three Implications of Noble (1999), 42 Crim. L.Q. 286, pp. 307 [para. 32]; 309, 310 [para. 39].

Uniform Law Conference of Canada, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), pp. 342, 343, 353 to 356 [para. 22].

Counsel:

Russell Silverstein and Ingrid Grant, for the appellant;

Ivan S. Bloom, Q.C., Lisa Csele and Ghazala Zaman, for the respondent.

These appeals were heard on January 21, 2010, by Doherty, Feldman, MacPherson, Blair and Juriansz, JJ.A., of the Ontario Court of Appeal. On June 10, 2010, Doherty, J.A., delivered the following judgment for the court.