As a further protection, no adverse comment may be made by the prosecutor regarding a failure to testify. The Crown may not suggest guilt is shown by 'hiding from the jury'.
Today's decision in R. v. Biladeau, 2008 ONCA 833 considers this prohibition in detail.
ANALYSIS
[17] Section 4(6) of the Canada Evidence Act provides: The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
[18] This prohibition has been part of Canadian law for over a century. It was first introduced in 1906 following the 1893 reforms to the Act which made accused persons and their spouses competent witnesses for the defence: An Act further to amend the Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1. The purpose of the prohibition was described in R. v. Romano (1915), 24 C.C.C. 30 (Que. K.B.), as to prevent prosecuting counsel from supporting a weak case by exploiting the fact that the accused or his or her spouse had elected not to exercise their newly acquired right to testify. Had this "safeguard… not been provided, prosecuting counsel would incline… to say to juries: "Here is the prisoner who knows what he has done or not done: "Why does he not give his testimony?" or "Why does his wife not give her testimony?": Romano, at p. 31.
[19] More recently, in R. v. Noble, [1997] 1 S.C.R. 874, Lamer C.J., dissenting, but not on this point, stated at para. 36 that s. 4(6) was "originally created to ensure that neither the court nor the prosecution would draw unfair attention to the silence of the accused." Sopinka J., for the majority, at para. 97, suggested that the purpose of s. 4(6) is to prevent the trial judge and the prosecution from inviting the jury to place the failure of the accused to testify on the evidentiary scales. Section 4(6) is thus closely tied to the right of silence protected by s. 7 of the Charter and is consistent with the right against self-incrimination under s. 11(c): Noble, per Sopinka J.; R. v. Boss (1988), 46 C.C.C. (3d) 523 (Ont. C.A.), per Cory J.A.
[20] It has been consistently held that s. 4(6) must be interpreted in light of its purpose rather than in a literal or mechanical fashion. Accordingly, the provision will not be violated where the trial judge explains to the jury that the accused has a constitutional right not to testify and that the burden of proving the case always rests with the Crown, provided the instruction is not "presented to the jury in such fashion as to suggest that… silence is being used as a cloak for… guilt": R. v. McConnell, [1968] S.C.R. 802, at p. 809.
[21] Similarly, a statement that the Crown's evidence is "not denied" or is "uncontradicted", standing alone, does not amount to comment on the accused's failure to testify. As explained by Sopinka J. in Noble, at para. 97: [i]n such a circumstance, the judge is not instructing the jury to consider the failure of the accused to testify per se, but rather is simply instructing the jury to take note of the fact that no evidence had been led to contradict a particular point. Rather than inviting the jury to place the failure of the accused on the evidentiary scales, the judge is instructing the jury that it need not speculate about possible contradictory evidence which has not been led in evidence.
[22] Thus, in order to violate s. 4(6), there must be something more than a reference to uncontradicted evidence, something which "pointedly draws the attention of the jury to the fact that there is evidence which the accused could give and which he has failed to give": R. v. Wright, [1945] S.C.R. 319, at p. 324.
[23] It has also been held that "offhand" or "ambiguous" remarks about the need for the jury to base its conclusions on the evidence or the absence of evidence supporting the position of the defence will not violate the section, especially where the trial judge makes it clear to the jury that the burden of proof always rests upon the Crown: R. v. Potvin, [1989] 1 S.C.R. 525. Such remarks neither constitute an invitation to the jury to infer guilt from silence nor cause prejudice to the accused.
[24] The Crown places particular reliance on the decision of this court in Knox, which was referred to and relied upon by the trial judge in his ruling. In Knox, the accused was charged with a number of offences arising from a collision with an officer in a stolen car. The issue was identity. The accused was found present in a field close to the scene of the collision. In the course of explaining to the jury that they were not to draw wild inferences about why he was conveniently found in this field, Crown counsel stated: Obviously, Mr. Knox has a constitutional right not to testify. He has to prove nothing here. The onus is on the Crown the whole time, but having said that, if he chooses not to testify, then the Crown's case stands or falls on its own two feet. … while the defence doesn't have to call evidence, it's entitled to. Relying on McConnell and Potvin, Laskin J.A. held that while the remarks were "close to the line", and would have been "better left unsaid", they did not go so far as to suggest that the accused was using silence as a cloak for his guilt: Knox, at para. 62.
[25] This case is different from Knox. Each case must be decided on the basis of its own facts and the impugned remarks must be considered in context and in the light of the purposive approach to the interpretation of s. 4(6). No trial, as is often said, is perfect, and we must give some latitude for the give and take of the adversarial process. However, Parliament has drawn a line that reflects a fundamental value of our criminal justice system. In cases where the cumulative effect of what Crown counsel has said "invited the jury to act upon the failure of the accused to give evidence on matters that were essential to the theory of the Crown in proof of the guilt of the accused", we find ourselves in a situation where "incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness": R. v. Woodcock (1996), 81 B.C.A.C. 27 (C.A.), at paras. 27-28; R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A. ), at p. 320. The cases demonstrate that there is a limit to what can be reconciled with the statutory protection accorded to an accused person who chooses to remain silent: see e.g. R. v. Lee, [1970] 3 O.R. 285 (C.A.); R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A. ). We must prevent the erosion of the statutory protection of s. 4(6) and discourage prosecutors from devising clever or subtle ways to focus the jury's attention on the failure of the accused to testify.
[26] In the case at bar, the prosecutor made two references to the fact that the Crown's evidence stood uncontradicted. He stated that there was "no evidence" of an "alternative version of what happened" other than the complainant's. He then said that the only evidence regarding the issue of consent was what she had told the jury.
[27] These comments, standing alone, probably would not have violated s. 4(6) on the authorities I have mentioned. However, Crown counsel was not prepared to leave it at that and later in his closing, in reference to the accused's belief in consent, he added: Now, that may present a problem, because you need to figure out what his knowledge was as to whether or not she was consenting. But he didn't testify, so he can't be asked directly what he thought at the time or what he construed or what he knew. [Emphasis added.]
[28] The words "but he didn't testify" clearly amount to a comment on the failure of the appellant to testify within the letter of s. 4(6). But do they violate the spirit or purpose of s. 4(6)? In my view, it is clear that they do.
[29] The comment must be read in the context of the submission that there was no "alternate version" and that complainant's evidence was uncontradicted. It must also be read with the submission that as the appellant did not testify, he could not be questioned. Crown counsel was pointing out to the jury not only that the accused remained silent and offered no explanation for what occurred on the night in question but also that he was not prepared to expose himself to cross-examination.
[30] The Crown's closing in this case cannot be explained away as a passing reference to the right of the accused not to testify that did not prejudice the accused. Commenting on the accused's failure to testify, as in this case, is quite different from commenting on the accused's constitutional right not to testify, as in Knox. (I add, however, that surely one can expect Crown counsel to refrain from comments indentified by this court as "close to the line" and "better left unsaid".)
[31] In my view, the comments in the case at bar cannot be excused as ambiguous or off-hand. Rather, they appear to have been part of a carefully structured closing address that pointedly drew the attention of the jury to the fact that the accused did not take the stand. If the Crown's closing address did not do so explicitly, it strongly implied that the jury could and should infer that the appellant's silence and his refusal to expose himself to cross-examination were indicia of his guilt.
[32] Before us, the Crown argues that the accused's failure to testify was the "elephant in the room". It was obvious, the Crown argues, that there were only two people who could explain what occurred and the jury was bound to infer guilt from the appellant's silence. In my view, this argument does not assist the Crown. There is a clear distinction between inferences that the jury may draw from the accused's silence in the absence of a comment and the statutory right of the accused not to have the prosecutor or the judge invite the jury to place evidentiary weight on his failure to testify through a comment. As Charron J.A. observed in Miller, at para. 14: The appellant, in choosing not to testify, can expect a jury may draw an adverse inference against him. However, by reason of the express provision under s. 4(6), he is assured that no greater weight will be placed upon his failure to testify by reason of a comment by the prosecutor or the judge.
[33] In my view, the problem caused by the comment on the failure of the accused to testify was exacerbated by the Crown's earlier reference to the "timid juror" in relation to an explanation of the concept of reasonable doubt. This court has stated that this sort of language is to be avoided as it may confuse jurors regarding the meaning of reasonable doubt: R. v. Karthiresu (2000), 129 O.A.C. 291. While reference to the "timid juror" standing alone may not be fatal, its use here added to the problem created by the Crown's references to the accused's failure to testify. Moreover, the reference to "timid juror" in the face of a clear warning from this court in Karthiresu, when read with the comment on the appellant's failure to testify, suggests that Crown counsel may well have been flirting with danger and deliberately testing the outer limits of what is permissible.
[34] Finally, I note that the questions from the jury indicate that they were troubled by what they perceived to be a hole in the evidence. The Crown's closing indicated that the only hole in the evidence in this case was the accused's failure to testify. Viewed in this light, the jury's questions suggest that there was a real risk that the appellant was prejudiced by the Crown's comment on his failure to testify.
[35] I am not persuaded that we should refuse to allow the appeal because the appellant's trial counsel insisted that nothing short of a mistrial was capable of curing the situation. Nor would I apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. The comments of Crown counsel violated the appellant's statutory right under s. 4(6) of the Canada Evidence Act. The complainant's evidence was challenged and the Crown's case was not overwhelming. The jury's subsequent questions indicate that they may well have been concerned about the failure of the accused to testify. As I find that the Crown's closing amounted to an invitation to the jury to infer guilt from the accused's failure to testify that prejudiced the appellant's right to a fair trial, it is my view that the conviction must be set aside.
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