Failure to testify may be considered in determining guilt

R. v. J.N., 2015 NUCJ 29:

 [25] Section 4 of the Canada Evidence Act, RSC 1985, C c-5, prohibits a judge or prosecutor from commenting to a jury on the failure of an accused to testify. This does not mean, however, that the trier of fact, whether a jury or a judge sitting alone, cannot weigh this factor into the balance when considering whether or not to accept evidence (R v B(JN) (1989), 56 Man R (2d) 215 (CA), 48 CCC (3d) 71; aff'd on other grounds [1991] 1 SCR 66, 71 Man R (2d) 156 (B(JN)).

 [26] In B(JN), the Court of Appeal for Manitoba stated:

 The Crown must always prove its case against the accused. Unlike some other systems of law, ours does not require an accused person to deny the commission of the offence, apart from the entry of a formal plea, or to explain his conduct. It would be quite wrong for a trier of fact, or this court, to consider the accused's failure to testify as a fact giving rise to an inference of guilt. Nonetheless, the failure of the accused to testify may become relevant once the Crown has introduced evidence which, if believed, satisfies the trier of fact of guilt to the necessary extent. In deciding whether to believe the Crown's witnesses, the trier of fact will inevitably consider the absence of a denial by the accused or, if there are proven facts that are capable of being explained in a manner consistent with innocence, the absence of such an explanation.