Accused’s silence not evidence of guilt

FUNDAMENTAL JUSTICE

Accused’s silence not evidence of guilt

Accused not testifying at joint trial with co-accused. Co-accused’s counsel submitting to jurors accused’s failure to testify evidence of his guilt. Trial judge holding co-accused’s closing remarks prejudiced accused, undermined right to silence. Trial judge declining to give remedial instruction, holding s. 4(6) of Canada Evidence Act precluded reference to accused’s silence. Court of appeal holding trial judge erred, s. 4(6) only prohibited comments prejudicial to accused, not limiting instruction requested. Court of appeal upholding convictions, holding error harmless. Accused’s further appeal dismissed. Section 4(6) of Canada Evidence Act did not preclude affirmation for right to silence, which should be done where realistic concern jury may place evidential weight on accused’s decision not to testify. Jury entitled to take into account evidence uncontradicted in assessing reliability, credibility of Crown’s case. Co-accused’s counsel ought not to have made comment concerning accused’s failure to testify. Co-accused could have relied on fact he testified to argue he was innocent, had nothing to hide but not to invite jury to use accused’s silence as evidence of accused’s guilt. Explicit remedial instruction from trial judge would have been preferable. Trial judge’s charge functionally adequate to impart message Crown could prove accused’s guilt only on evidence, accused’s silence not evidence of guilt.
R. v. Prokofiew (Oct. 12, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33754) Decision at 256 C.C.C. (3d) 355; 88 W.C.B. (2d) 702 was affirmed. 104 W.C.B. (2d) 190.