R. v. Turcotte, 2005 SCC 50, [2005] 2 SCR 519

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty the Queen

Appellant

v.

Thomas Turcotte

Respondent

‑ and ‑

Criminal Lawyers’ Association (Ontario)

Intervener

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50

Her Majesty The Queen                                                                                  Appellant

v.

Thomas Turcotte                                                                                           Respondent

and

Criminal Lawyers’ Association (Ontario)                                                      Intervener

Indexed as:  R. v. Turcotte

Neutral citation:  2005 SCC 50.

File No.:  30349.

2005:  May 10; 2005:  September 30.

Present:  McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Admissibility — Post‑offence conduct — Right to silence — Accused going to police station of his own volition and asking that officers be sent to a ranch where he lived — Accused refusing to answer police’s questions as to why officers were  needed — Three murder victims found at the ranch — Trial judge instructing jury that accused’s silence was post‑offence conduct and that an inference of guilt could be drawn from it — Whether evidence of accused’s silence admissible as post‑offence conduct.

Criminal law — Right to silence — Limits — Waiver — Accused going to police station of his own volition and asking that officers be sent to a ranch where he lived — Accused refusing to answer police’s questions as to why officers were needed — Whether right to silence engaged if accused not detained or arrested — Whether accused waived his right to silence by voluntarily going to police station and answering some questions.

The accused went to a police station and asked that a car be sent to the ranch where he lived.  Despite repeated questions from the police, he refused to explain why a car was necessary or what would be found there.  The officers dispatched to the ranch discovered three victims.  All three died from axe wounds to the head.  The accused was charged with three counts of second degree murder.  At trial, the evidence against the accused was entirely circumstantial.  He admitted finding the victims but denied killing them.  With respect to the accused’s refusal to respond to some police questioning, the trial judge told the jury that this silence was “post‑offence conduct” and that an inference of guilt could be drawn from it.  The jury found the accused guilty, but the Court of Appeal set aside the convictions and ordered a new trial.

Held:  The appeal should be dismissed.

The evidence of the accused’s silence  was not admissible as post‑offence conduct.  The right to silence would be illusory if the decision not to speak to the police could be used by the Crown as evidence of guilt. [44] [55]

Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning, even if he or she is not detained or arrested.  The right to silence, which is also protected by the Canadian Charter of Rights and Freedoms , exists at all times against the state, whether or not the person asserting it is within its power or control.  Furthermore, a voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence.  The right to choose whether to speak is retained throughout the interaction.  Accordingly, the accused in this case did not waive his right to silence by going to the police station and answering some of the police’s questions. [41] [51-52]

Conduct after a crime has been committed is admissible as “post‑offence conduct” only when it provides circumstantial evidence of guilt.  Since the law imposes no duty to speak to or cooperate with the police, this fact alone severs any link between silence and guilt.  Silence in the face of police questioning will, therefore, rarely be admissible as post‑offence conduct because it is rarely probative of guilt.  An inference of guilt cannot logically or morally emerge from the exercise of a protected right.  Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions.  Lastly, the accused’s silence could not be used as “state of mind” evidence from which guilt could be inferred.  Characterizing the silence as state of mind evidence was simply another way of arguing that the silence was post‑offence conduct probative of the accused’s guilt.  [55] [57]

While not admissible as post‑offence conduct or state of mind evidence, the accused’s behaviour at the police detachment, including his refusal to answer some of the police’s questions, was, arguably, admissible as an inextricable part of the narrative.  Where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence.  The failure to give the jury this limiting instruction, particularly given the circumstantial nature of the Crown’s case, was highly prejudicial and a new trial is required. [58‑60]

Cases Cited

Referred to:   R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. White, [1998] 2 S.C.R. 72; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. B. (S.C.) (1997), 36 O.R. (3d) 516; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Lavallee, [1980] O.J. No. 540 (QL); R. v. Ouellette (1997), 200 A.R. 363; R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341; R. v. Cleghorn, [1995] 3 S.C.R. 175.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7 .

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J. and Rowles and Huddart JJ.A.) (2004), 195 B.C.A.C. 276, 319 W.A.C. 276, 184 C.C.C. (3d) 242, [2004] B.C.J. No. 562 (QL), 2004 BCCA 175, setting aside a conviction on three counts of second degree murder.  Appeal dismissed.

Oleh Kuzma, Q.C., and Ursula Botz, for the appellant.

Greg DelBigio and Lisa Sturgess, for the respondent.

Ian R. Smith, for the intervener the Criminal Lawyers’ Association (Ontario).

The judgment of the Court was delivered by

1                                   Abella J. — On May 4, 2000, three men who lived or worked at a ranch in British Columbia were murdered there.  All three died from axe wounds to the head.

2                                   One of the victims, Aale Heikkila,  was a trapper and wildlife photographer who lived on the ranch.  The police found him unconscious with serious injuries.  He died on May 24, 2000 without regaining consciousness.  The two other victims, Terrance Price and Kimberley Martindale, were ranch hands who worked for the owner, Robert Erhorn.  They were dead when the police arrived.  

3                                   Thomas Turcotte, who was living rent‑free in a cabin on the ranch in exchange for doing odd jobs for Mr. Erhorn, testified that he found the three bodies.  At trial, he admitted finding the victims but denied killing them. 

4                                   He was convicted of murdering the three men.  The evidence against him was entirely circumstantial.   

5                                   Mr. Turcotte’s conduct the morning he went to the police station of his own volition and asked that a car be sent to the ranch frames this appeal.  Despite repeated questions from the police, he refused to explain why a car was necessary or what would be found at the ranch.  The trial judge told the jury that this silence was “post-offence conduct”, and that an inference of guilt could be drawn from it. 

6                                   The issue is the propriety of both the designation and the inference.

Background

7                                   On May 4, 2000, according to Mr. Turcotte, after doing some work on a neighbour’s property, he returned to the ranch between 6:25 and 6:45 a.m.  The ranch is located about 32 kilometres south of the town of Vanderhoof.  He said that he found Kimberley Martindale lying on the ground, covered in blood and not breathing.  He then found Terrance Price in the woodshed, covered in blood.  It was Mr. Turcotte’s impression that Mr. Price had been shot.  The last body he said he found was that of Aale Heikkila, on the ground outside his trailer. 

8                                   Mr. Turcotte testified that, thinking all three men were dead, he decided to inform the police.  Since there were no working phones on the ranch, he took Mr. Heikkila’s truck and drove to the Vanderhoof RCMP detachment.

9                                   As soon as he arrived, at about 9:30 a.m., he repeatedly asked a clerk working at the detachment, Ruth Stewart, to send a car to the ranch.  A few minutes after his arrival at the detachment, Ms. Stewart asked the two police officers who were present while Mr. Turcotte was talking to her, Corporal Kenneth Curle and Constable Ross Davidson, to take over.  According to Constable Davidson, Mr. Turcotte immediately and repeatedly requested that the officers send a car to the ranch, but refused to explain why.  Mr. Turcotte, Constable Davidson said, then pushed a set of keys under the partition between the office and the front foyer and told him that the keys were for the locked truck parked outside and that there was a rifle in the truck.

10                               After a few minutes, both officers escorted Mr. Turcotte into an interview room.  On the way, Corporal Curle asked Mr. Turcotte his name, which he gave without hesitation.  In the interview room itself, in response to questions from the officers, Mr. Turcotte gave them his middle name and date of birth. 

11                               Once seated in the interview room, Mr. Turcotte repeated his request that a car be sent to the Erhorn Ranch.  Corporal Curle testified that he then asked him three questions in quick succession: What can we do for you? What happened out there? What were you doing there?  Mr. Turcotte responded that he was “working a little bit”.  According to Corporal Curle, Mr. Turcotte then stated, “you’d better send a car and put me in jail” and “[t]here’s a rifle in the truck out there.”  At trial, Mr. Turcotte’s explanation for telling the police that there was a rifle in the truck was that he thought it might have been the murder weapon. The evidence disclosed that the rifle, which belonged to Mr. Heikkila was not in fact used in any of the murders.

12                               Corporal Curle asked what they would find at the ranch.  Mr. Turcotte repeated that the officers should send a car.  They then asked him if anyone, including any officers, would be in danger there.  Mr. Turcotte replied that there was no  danger.

13                               It was Constable Davidson’s evidence that Mr. Turcotte then told the officers “out of the blue” that they should “[s]end an ambulance too”.  Corporal Curle did not recall the subject of an ambulance being raised at this point, and his notes, which he took during the conversation in the interview room, had no reference to an ambulance being mentioned at this stage of the conversation.

14                               Corporal Curle then took Mr. Turcotte to another area of the detachment and dispatched two officers, Constables Michael Pisio and Marion Erickson, to the Erhorn Ranch.  It was at this stage that Corporal Curle said he asked Mr. Turcotte whether an ambulance was needed.  As a result of Mr. Turcotte answering “maybe”, Corporal Curle sent an ambulance to the ranch. 

15                               Constable Davidson then took the keys Mr. Turcotte had given them and unlocked Mr. Heikkila’s truck.  He found a loaded hunting rifle between the two front seats.

16                               At about 10:00 a.m., Corporal Curle asked Mr. Turcotte “Do you want to tell me what is going on?”  He replied “Has a car got there yet?”  When Corporal Curle responded “No”, Mr. Turcotte said “I’ll wait.”  Just after this conversation, Corporal Curle received a phone call from Constable Pisio who told him that a dead man had been found at the ranch.

17                               At 10:06 a.m., Corporal Curle detained Mr. Turcotte for further investigation and  informed him of his rights.  When Mr. Turcotte was asked whether he wanted to talk about what happened at the ranch, he once again indicated that he did not want to make a statement.

18                               After his detention, Mr. Turcotte’s clothing was seized.  A small amount of blood, which turned out to belong to Mr. Price and Mr. Martindale, was found on his left boot and lower pant leg.  His fingerprints matched those on an orange juice container and a “ghetto blaster” found at the scene of the crimes, both belonging to Mr. Heikkila.

19                               At 4:33 p.m. that afternoon, Mr. Turcotte was arrested for the murders.

20                               Despite a thorough search of the ranch shortly after the killings, no murder weapon was immediately found.  It was not until two months later that a double-sided axe, the only weapon used in the murders, was found at the ranch under a tarp on top of Mr. Heikkila’s trailer.  The defence argued that since Mr. Turcotte had been in custody since his arrest, someone else must have put the axe there.

21                               Mr. Turcotte’s evidence at trial was that he never said “put me in jail” at the detachment.  He acknowledged, however, that he might have told the officers to “lock me up” until the police got to the ranch so that they would shift their focus from him and deal with the situation at the ranch as quickly as possible.

22                               As for the evidence of the fingerprints on Mr. Heikkila’s juice container and ghetto blaster, Mr. Turcotte testified that he might have handled them while working for Mr. Heikkila. 

23                               A defence expert, Daniel Christman, said that the amount of blood on Mr. Turcotte’s clothing was so small as to be consistent with his having found the bodies, but not with his being the murderer.  Similarly, a Crown witness, Jennifer Rice, a forensic pathologist, testified that because of the location of the victims’ wounds, she would have expected the axe blows to Mr. Price and Mr. Martindale to have caused significant spattering of blood, of which there was no evidence on Mr. Turcotte when he came to the station.

24                               The defence argued that Mr. Turcotte had clearly not cleaned up before coming to the police station, since Ms. Stewart testified that Mr. Turcotte’s hands were dirty when he arrived at the detachment, and Constable Davidson testified that he was wearing dirty work clothes.

25                               When Mr. Turcotte was asked why he did not give the police a reason for sending a car to the ranch, he gave a number of explanations:  he had “messed up”; he was in shock and had panicked; he “just wasn’t reacting right”; and he was not thinking clearly.  He also answered that he did not know if he could trust the police and felt, from the way the police were acting, that he was already under suspicion. 

26                               According to the evidence, Mr. Turcotte was a loner, uncomfortable with people, suspicious of the police, and rarely went into town.  He had no history of violence and the Crown offered no motive for the murders. 

27                               The Crown relied exclusively on circumstantial evidence, including Mr. Turcotte’s conduct at the police station; his fingerprints on the two items found at the ranch; and forensic analysis of the small blood stains found on Mr. Turcotte’s left boot and lower pant leg showing that the blood belonged to Mr. Price and Mr. Martindale.  A Crown expert witness, Sergeant John Mellis, testified that the blood spatter may have been minimal because of the nature of the blows and the shape of the axe.

28                               Several voir dires were held during the trial, but at no time did the defence take issue with the admissibility of Mr. Turcotte’s refusal to answer the police questions.  The only disputed issue was the use to which the silence could be put by the jury. 

29                               The Crown cross-examined Mr. Turcotte about what he said — and did not say — until he was formally detained and cautioned. Both prior to and after the Crown’s cross-examination, the trial judge told the jury that although no inference of guilt or innocence could be drawn from Mr. Turcotte’s constitutionally protected right to silence, they could nonetheless use it to assess his state of mind:

You may hear questions and answers that relate to what he did and what he said from the time he was interviewed in the interview room of the Vanderhoof R.C.M.P. Detachment station up to the time he was formally arrested.

I am going to permit you to hear this evidence solely for the purpose of you assessing the evidence as it relates only to the state of mind of Mr. Turcotte at the time.  I want you to be aware as you hear this evidence that a detained person has a right guaranteed by our Charter of Rights and Freedoms to remain silent . . . .

Under no circumstances can you draw any inference of guilt or innocence from the fact that a person . . . exercises his constitutional right to remain silent.  The only purpose you may make of any of the evidence pertaining to the discussions between Corporal Curle and Mr. Turcotte is in relation to Mr. Turcotte’s state of mind at the time on May 4th, 2000.

30                               The Crown, during its closing address, characterized Mr. Turcotte’s conduct at the detachment, including his refusal to answer questions, as “consciousness of guilt” evidence, and urged the jury to conclude that Mr. Turcotte’s silence was not a reflection of shock or panic, but conduct from which an inference of guilt could be drawn:

And even though he claims to be in a state of shock and panic, he says he started suspecting that the police were suspecting him.  That may tell you something about the guilty mind of Mr. Turcotte at the time.  But again, it doesn’t show that he was in a state of shock or panic, but rather that he was thinking about what he said and chose to say what he wanted to say and didn’t want to say.

. . .

None of Davidson, Curle or Ms. Stewart observed any signs of shock or panic. In his own mind he’s thinking because he’s getting suspicious, and why would he get suspicious unless he had something to be guilty about? Why is he thinking the police suspect him? His mind is thinking about that and then he acts appropriately. . . . His mind throughout the course of the day shows no signs of panic, no signs of shock, it shows that he was thinking about what he did and said and was very careful about what he didn’t want to say.

. . .

And a lot makes sense when you look at it and it doesn’t make sense just to say that I was in a state of shock and panic, because at the very least you would expect a man who is innocent and came back and wanted the police to go there to have said something as simple as there’s three bodies out there, that’s why. I mean what’s so difficult? There’s nothing incriminating about that, there’s three bodies out there, but he kept refusing to answer the question what happened, why they should send a car out there. And the only rational explanation is he didn’t want to tell them. [Emphasis added.]

31                               The trial judge, Chamberlist J., said in his jury charge that Mr. Turcotte’s behaviour at the RCMP detachment was better characterized as “post-offence conduct”, not “consciousness of guilt” evidence.  He told the jury that post-offence conduct is “simply a piece of circumstantial evidence” and that it consists of behaviour after the offence.  The trial judge described Mr. Turcotte’s refusal to tell the police what was at the ranch as the only post-offence conduct, and told the jury that they could decide that the only “substantial evidence” of guilt was this post-offence conduct:

Lastly, the Crown mentioned to you consciousness of guilt, or what I call post-offence conduct, and that is the post-offence conduct relating to why Mr. Turcotte did not just say there were three bodies out there.

. . .

There is a contest between the Crown and Mr. Turcotte as to whether his post‑offence conduct of not advising why he wanted a police car out at the ranch relates to the crimes charged in the Indictment, or to some other blameworthy act, or it was just a manifestation of the gruesome circumstances Mr. Turcotte happened on at the Erhorn Ranch. If you determine it relates to the crime charged then you may weigh that evidence when deciding whether Mr. Turcotte is guilty or not guilty of the offences charged. But if you determine it relates to the emotional circumstances of Mr. Turcotte at the time, or some other blameworthy act, then you should disregard the evidence and give it no weight in your deliberations as to whether Mr. Turcotte is guilty or not guilty.

You may decide that the only substantial evidence proving the guilt of Mr. Turcotte arises from his post‑offence conduct, and that evidence is subject to two directly conflicting interpretations, one favouring Mr. Turcotte and one not. Before deciding which theory you believe with respect to this evidence, you should consider the evidence as a whole and give the benefit of the doubt to Mr. Turcotte. [Emphasis added.]

32                               The jury found Mr. Turcotte guilty of three counts of second degree murder.  He was sentenced to life in prison with no eligibility for parole for 20 years.

33                               The British Columbia Court of Appeal set aside the convictions and ordered a new trial: (2004), 195 B.C.A.C. 276, 2004 BCCA 175.  The determinative issue on appeal was whether the trial judge’s instruction to the jury that they could draw an inference of guilt from Mr. Turcotte’s post‑offence conduct, specifically his silence, constituted reversible error.

34                               Relying on R. v. Chambers,  [1990] 2 S.C.R. 1293, Rowles J.A., writing for a unanimous court (Finch C.J. and Huddart J.A.), held that because there was no statutory or common law rule requiring Mr. Turcotte to respond to the police’s questions, he had the right to remain silent.  She concluded that the evidence of silence was irrelevant, and that even if Mr. Turcotte’s evidence was disbelieved, his silence could not constitute affirmative evidence that he had committed the offences. 

35                               The Crown appealed.  For the reasons that follow, I would dismiss the appeal.

Analysis      

36                               The essence of the Crown’s argument is that Mr. Turcotte’s refusal to respond to some of the questions from the police can be relied on as post-offence conduct from which an inference of guilt can be drawn.

37                               “Post-offence conduct” is a legal term of art.  It is not meant to be a neutral term embracing all behaviour by an accused after a crime has been committed, but only that conduct which is probative of guilt.  It is, by its nature, circumstantial evidence.

38                               The more traditional designation of such conduct, “consciousness of guilt” evidence, was changed by this Court to “post-offence conduct” evidence in R. v. White, [1998] 2 S.C.R. 72.  Major J. held, at para. 20, that use of the phrase “consciousness of guilt” should be discouraged because it might undermine the presumption of innocence or may mislead the jury.  In White, at para. 19, Major J. provided a non-exhaustive list of conduct that is typically admitted as post-offence conduct evidence:  flight from the scene of the crime or the jurisdiction in which the crime was committed; attempts to resist arrest; failure to appear at trial; and acts of concealment such as lying, assuming a false name, changing one’s appearance, and hiding or disposing of evidence.  In White, the post-offence conduct was the accused’s running from the police to avoid arrest, the attempted disposal of one of the murder weapons, and fleeing the jurisdiction following the killing.

39                               Although the terminology has been changed, the evidentiary concept has not.  As with evidence of “consciousness of guilt”, only evidence after a crime has been committed that is probative of guilt can be relied on as “post-offence conduct”.

40                               The first issue, therefore, is to determine whether the trial judge erred in designating Mr. Turcotte’s refusal to answer some of the police questions as “post-offence conduct” capable of supporting an inference of guilt.  This in turn requires a determination of whether Mr. Turcotte had the right to refuse to answer the police’s questions.  The Crown’s dual argument is that no right to silence was engaged in this case, but that even if it was, Mr. Turcotte’s conduct in going to the police station and answering some of the police’s questions, showed that it was a right he chose to waive.

41                               Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning.  This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen, [1981] 1 S.C.R. 640, per Lamer J.:

In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]

42                               Although its temporal limits have not yet been fully defined, the right to silence has also received Charter  benediction.  In R. v. Hebert, [1990] 2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7  right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel.  He was then placed in a cell with an undercover officer posing as a suspect under arrest.  During the course of their conversation, the accused incriminated himself.  The question before the Court was whether the statement to the undercover officer was admissible.  Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused’s right to silence found in s. 7  of the Canadian Charter of Rights and Freedoms .  

43                               In addition to emphasizing the importance of providing protection from the power of the state, McLachlin J. founded the s. 7  right to silence in two common law doctrines: the confessions rule and the privilege against self‑incrimination, explaining that both emerge from the following unifying theme:

[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. [p. 164]

44                               It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt.  As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused’s silence could not be used as evidence of guilt:

It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]

45                               Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be “a snare and a delusion” to allow evidence of any valid exercise of the right to be used as evidence of guilt. 

46                               Moreover, as Doherty and Rosenberg JJ.A. explained in R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.), since, in most circumstances, individuals are under no obligation to assist the police, their silence cannot, on its own, be probative of guilt:

. . . a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person’s culpability.  [p. 529]

47                               Evidence of silence is, however, admissible in limited circumstances.  As Cory J. held in Chambers, at p. 1318, if “the Crown can establish a real relevance and a proper basis”, evidence of silence can be admitted with an appropriate warning to the jury. 

48                               There are circumstances where the right to silence must bend.  In R. v. Crawford, [1995] 1 S.C.R. 858, for example, the Court was confronted with a conflict between the right to silence and the right to full answer and defence.  Two men were charged with second degree murder after a man was beaten to death.  At their joint trial, each blamed the other.  Crawford, one of the accused, had not given the police a statement, but he chose to testify at trial in his own defence.  His co-accused’s counsel cross-examined him on his failure to make a statement to the police.  This failure was negatively contrasted with the fact that his co-accused had given a full statement to the police at the earliest opportunity.  Sopinka J., writing for the majority, held that a balance between the two competing rights can be achieved if the evidence of silence is admitted, but used only to assess credibility and not to infer guilt.  Since the jury had been invited to infer guilt from Crawford’s silence, the Court ordered a new trial.

49                               Evidence of silence may also be admissible when the defence raises an issue that renders the accused’s silence relevant.  Examples include circumstances where the defence seeks to emphasize the accused’s cooperation with the authorities (R. v. Lavallee, [1980] O.J. No. 540 (QL) (C.A.)); where the accused testified that he had denied the charges against him at the time he was arrested (R. v. Ouellette (1997), 200 A.R. 363 (C.A.)); or where silence is relevant to the defence theory of mistaken identity and a flawed police investigation (R. v. M.C.W. (2002), 169 B.C.A.C. 128, 2002 BCCA 341). 

50                               Similarly, cases where the accused failed to disclose his or her alibi in a timely or adequate manner provide a well established exception to the prohibition on using pre-trial silence against an accused: R. v. Cleghorn, [1995] 3 S.C.R. 175.  Silence might also be admissible if it is inextricably bound up with the narrative or other evidence and cannot easily be extricated.

51                               The Crown argued that any right to silence is engaged only when the accused comes within “the power of the state” and that the right has no relevance when the state has done nothing to use that power against the individual.  This, with respect, makes the right’s borders too confining.  In general, absent a statutory requirement to the contrary, individuals have the right to choose whether to speak to the police, even if they are not detained or arrested.  The common law right to silence exists at all times  against the state, whether or not the person asserting it is within its power or control.  Like the confessions rule, an accused’s right to silence applies any time he or she interacts with a person in authority, whether detained or not.  It is a right premised on an individual’s freedom to choose the extent of his or her cooperation with the police, and is animated by a recognition of the potentially coercive impact of the state’s authority and a concern that individuals not be required to incriminate themselves.  These policy considerations exist both before and after arrest or detention.  There is, as a result, no principled basis for failing to extend the common law right to silence to both periods.

52                               Nor do I share the Crown’s view that by attending at the detachment and answering some of the police’s questions, Mr. Turcotte waived any right he might otherwise have had.  A willingness to impart some information to the police does not completely submerge an individual’s right not to respond to police questioning.  He or she need not be mute to reflect an intention to invoke it.  An individual can provide some, none, or all of the information he or she has.  A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence.  The right to choose whether to speak is retained throughout the interaction.

53                               At various points throughout the trial, the Crown, and the trial judge at the Crown’s request, characterized Mr. Turcotte’s silence in two ways: as post-offence conduct evidence (called “consciousness of guilt” evidence by the Crown), and as state of mind evidence rebutting his claim to be in shock and panic.  Most troubling was the trial judge’s final instructions on post-offence conduct.  During this portion of his instructions, the trial judge told the jury that Mr. Turcotte’s silence was post-offence conduct and zeroed in on his silence as the only relevant post-offence conduct.  His invocation was: “You may decide that the only substantial evidence proving the guilt of Mr. Turcotte arises from his post‑offence conduct.”

54                               Even before his detention at 10:06 a.m., Mr. Turcotte had no duty to speak to or cooperate with the police.  He exercised this right by refusing to answer some of the questions put to him by the police, declining to explain why a car should be sent to the Erhorn Ranch and refusing to say what the police would find there.  Although he answered some of the police’s questions, when he did not answer others he was nonetheless exercising his right to silence.

55                               This is significant in deciding whether evidence of his silence was admissible as post-offence conduct, that is, evidence that is probative of guilt.  Conduct after a crime has been committed is only admissible as “post-offence conduct” when it provides circumstantial evidence of guilt.  The necessary relevance is lost if there is no connection between the conduct and guilt.  The law imposes no duty to speak to or cooperate with the police.  This fact alone severs any link between silence and guilt.  Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative of guilt.  Refusing to do what one has a right to refuse to do reveals nothing.  An inference of guilt cannot logically or morally emerge from the exercise of a protected right.  Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions.

56                               Since there was no duty on Mr. Turcotte’s part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as “post-offence conduct”.

57                               Nor do I see how Mr. Turcotte’s silence could be used as “state of mind” evidence from which guilt could be inferred.  The Crown argued that Mr. Turcotte’s silence negated his claim that his state of mind was one of shock and panic.  It is clear from the Crown’s closing argument that there was little difference between asking the jury to consider Mr. Turcotte’s silence as evidence of his state of mind, and asking them to consider it as evidence of his guilty conscience.  So, for example, during his closing argument the Crown argued:

That may tell you something about the guilty mind of Mr. Turcotte at the time.  But again, it doesn’t show that he was in a state of shock or panic, but rather that he was thinking about what he said and chose to say what he wanted to say and didn’t want to say. 

In order to make this claim, it was necessary for the Crown to suggest that his silence was motivated by a different state of mind, namely his guilty conscience.  Characterizing the silence as state of mind evidence was simply another way of arguing that the silence was post-offence conduct probative of Mr. Turcotte’s guilt. 

58                               While not admissible as post-offence conduct or state of mind evidence, Mr. Turcotte’s behaviour at the RCMP detachment, including his refusal to answer some of the police’s questions,  was, arguably, admissible as an inextricable part of the narrative.  As previously indicated, no issue was raised about its admissibility either at trial or on appeal.  But, having admitted his silence into evidence, the trial judge was obliged to tell the jury in the clearest of terms that it could not be used to support an inference of guilt in order to contradict an intuitive impulse to conclude that silence is incompatible with innocence.  Where evidence of silence is admitted, juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence.     

59                               The failure to give the jury this limiting instruction, particularly given the circumstantial nature of the Crown’s case, was highly prejudicial. 

60                               Given the significance of the error, I agree with the Court of Appeal that the curative proviso is inapplicable and a new trial is required. 

61                               I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant:  Attorney General of British Columbia, Prince George.

Solicitor for the respondent:  Gregory P. DelBigio, Vancouver.

Solicitors for the intervener:  Fenton, Smith, Toronto.