Commenting on the failure of an accused to testify

R. v Prokofiew 2012 SCC 49 , released today, deals with, among other things, a judge commenting on the failure of an accused to testify.

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

The Court points out that the words “subject to comment” really means subject to adverse comment – the Court may point out, where appropriate, that the failure to testify is not to be taken against the accused:

[3]                              My colleague and I agree that s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), does not prohibit a trial judge from affirming an accused’s right to silence.  In so concluding, I should not be taken — nor do I understand my colleague to suggest — that such an instruction must be given in every case where an accused exercises his or her right to remain silent at trial.  Rather, it will be for the trial judge, in the exercise of his or her discretion, to provide such an instruction where there is a realistic concern that the jury may place evidential value on an accused’s decision not to testify.

[4]                              In cases where the jury is given an instruction on the accused’s right to remain silent at trial, the trial judge should, in explaining the right, make it clear to the jury that an accused’s silence is not evidence and that it cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.  In other words, if, after considering the whole of the evidence, the jury is not satisfied that the charge against the accused has been proven beyond a reasonable doubt, the jury cannot look to the accused’s silence to remove that doubt and give the Crown’s case the boost it needs to push it over the line.