R. v. G.L., 2009 ONCA 501
[38] It is apparent that the trial judge used the appellant’s failure to deny that what happened between him and the complainant was of a sexual nature as proof that, in fact, it was. She used his failure to volunteer that the complainant at some point sat on his lap as supportive of her conclusion that the “something very bad” he acknowledged happened was something very bad of a sexual nature. In both respects she drew an adverse inference about the appellant’s credibility from his silence. This, she was not permitted to do. As this Court has recently observed in R. v. Palmer, 2008 ONCA 797, at para. 9:
It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to use that finding in assessing the appellant's overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.
[39] The appellant had a constitutional right to remain silent during any part of the police interview. That right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely: see R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1315-1317; R. v. Marshall (2006), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81 (C.A.), at para. 82. The negative inferences the trial judge drew against the appellant were significant and it cannot be said the verdict would have been the same had she not made this error. This error alone would be sufficient to warrant appellate intervention.
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